R (Gamesys Operations Ltd) v HM Senior Coroner Inner London South [2025] EWHC 659 (Admin) judgment here
The title of this blog will surprise no one, as it is already well established that a coroner has a very wide discretion regarding what evidence to call, including in respect of whether to seek expert evidence and from whom.[1] There is nevertheless some helpful learning in this short ruling refusing the Claimants permission to challenge the Coroner’s choice of expert. Here the judge grapples with the unusual circumstances where there are some grounds for suggesting that a renowned expert may have a predetermined position on matters peripheral to the case. It is helpfully explained how the “appearance of bias” test, that would apply to any judge or coroner, is not the correct approach in respect of an expert’s position. An expert having previously expressed strident views on a matter will not necessarily bar them from acting in accordance with their duty of independence to the court.
Background
Mr Adams had died in 2020 from cardiac arrythmia and an overdose of medication. A question to be explored at his forthcoming inquest was whether gambling, or an undiagnosed gambling disorder, had contributed to his death and the Coroner decided that he needed expert evidence to help him to answer that question. The Coroner intended to instruct Professor Dame Clare Gerada, former President of the Royal College of General Practitioners. In 2020 Professor Gerada was made a DBE for services to medicine and mental illness, and she leads the NHS Primary Care gambling service whose aims are to provide treatment to people with gambling problems.
Gamesys, who operate online gambling sites, including some sites used by Mr Adams, objected to the proposed appointment of Professor Gerada on the grounds that she was not impartial. They asserted that Professor Gerada held fixed and strong negative views on gambling itself, and that she had publicly advocated for coroners to record gambling as a causative factor in suicide inquests. Gamesys suggested an alternative expert, Dr Frazer, who is a consultant psychiatrist with experience in gambling disorders.
Doubling down on the judgment of Solomon, the Coroner considered all Interested Persons (IPs) submissions and informed the IPs that he had decided to instruct both Professor Gerada (to act as a gambling disorder expert) and Dr Frazer (as an expert consultant psychiatrist) to act as expert witnesses. Before he finalised the letters of instruction, the Coroner invited comments from the IPs upon them.
However this approach did not satisfy Gamesys who, with the inquest still to be held, sent a letter before action and followed it up by issuing a Judicial Review claim. When Gamesys were refused permission to bring their claim on the papers they renewed their application at an oral hearing.
The Judicial Review grounds
The core submission of the Claimants was that Professor Gerada was not suitable to be an expert witness, as she was partial and not objective on the issues on which she would be instructed to give evidence. The Claimant asserted that Professor Gerada was a leading anti-gambling campaigner expressing staunch opposition to the gambling industry, including having stated that it should “realign its moral compass“, be subject to “much more responsibility” and “made to pay for gambling disorder patients“.
Professor Gerada had recently given written evidence to a Select Committee Inquiry that was contrary to the interests of Gamesys. In addition Gamesys said her son being a solicitor at the firm instructed by the bereaved family, and that firm having engaged her services in an earlier inquest showed her partiality. Furthermore, until about 2014, Mr Adams and his family attended the GP surgery at which Professor Gerada was practising, although she had not been his GP.
Gamesys argued that Professor Gerada was so obviously partisan that her appointment as the court’s expert infected the Coroner with bias, or at least gave rise to a reasonable apprehension of bias such that no reasonable coroner would have appointed her as their expert witness. It was also argued that the Coroner had not provided IPs with adequate reasons for his decision to call her.
In response the family submitted that, as an expert, Professor Gerada would owe a duty of independence to the court: a duty which she had applied on numerous previous occasions when acting as an expert witness in legal proceedings (including in coronial proceedings concerning gambling related suicide). She, therefore, appeared well placed to assist the Coroner on issues which he was investigating. Although her son did work in their solictor’s firm, this was in a different department in another area of work.
Coronial discretion
The judge noted the numerous authorities that establish how Coroners are afforded considerable discretion as to the scope and breadth of their enquiries. That broad discretion applies to coronial decisions regarding which witnesses to call including expert witnesses. The High Court would be “unwilling … to fetter the discretion of a coroner by being at all prescriptive about the procedures he should adopt in order to achieve a full, fair and thorough hearing”[2]
The question for the court therefore would be whether the decision to seek evidence from Professor Gerada was Wednesbury unreasonable. This was a very high threshold to meet and in the judge’s view the Claimants had no prospect of success in a rationality challenge. Professor Gerada had qualifications and expertise in the relevant area. She also had experience of appearing as an expert witness and she would be aware of the duties that expert witnesses owe to the court.
In the judge’s view it had been a “scrupulously fair and balanced decision” of the Coroner to decide to invite both Professor Gerada and Dr Frazer to give expert evidence from their different professional backgrounds.
The Coroner had already indicated that he intended to ensure that the evidence given by Professor Gerada and others did not stray beyond the circumstances of Mr Adams’ death when he had said: “I am conscious and cautious of the inquest appearing to become involved in the political aspects of safeguarding potential problem gamblers, because, as the parties are aware, that is not an arena I can enter“.
Must experts be untainted?
The judge noted how, in civil litigation, the independence of an expert is not assessed against the test for apparent bias. An expert having an interest in the proceedings is not an automatic bar. Rather, before a person can give evidence as an expert, the court has to be satisfied on two counts:
(1) that the person had the relevant expertise in an area in issue; and
(2) that the person was fully aware of the primacy of an expert’s duty to the court.[3]
In the context of an inquest, that assessment was to be had with reference to the inquisitorial nature of the proceedings and the very broad powers of a coroner.
Conflicts of interest compromising the independence of an expert would ordinarily only arise where the expert’s opinion was or may be influenced by their personal interests.[4] Here the judge considered that the matters raised were not even arguably sufficient to amount to a personal conflict of interest which would prevent Prof Gerada from acting as an expert at the inquest. The connection to her son was insufficient to give rise to any arguable personal conflict.
What was of particular relevance was that Professor Gerada would not be invited to opine on the wider issues concerning the safeguarding of problem gamblers. If she were questioned about such matters, said the judge, then the Coroner would no doubt intervene to prevent this.
In any event, the case was still an early stage in the selection of expert witnesses and their evidence had not yet been provided or considered. The claim was premature given that it was not even known whether Professor Gerada would conclude that gambling contributed to the death of Mr Adams. The Coroner’s reasoning had been brief, but this was acceptable for such a case management decision. In the light of the scrupulously fair way in which the Coroner had conducted the proceedings so far, the Judicial Review claim was unarguable, with no prospect of success. Permission was therefore refused
Comment
It is perhaps no surprise that the judge rejected a challenge to an expert report that had not even been written yet in an inquest that had not yet been held. Only rarely will the Administrative Court entertain a challenge to the exercise of a coroner’s discretion whilst the coronial process is ongoing. It is rarer still for the court to consider a challenge to a case management decision part way through the proceedings. Rather the general approach of the Administrative Court is that claimants should wait for the outcome of the inquest, when the actual impact of an impugned procedural decision can be more fully understood in its full context. Gamesys were trying to prematurely head off a problem that might never arise.
It was always going to be difficult to argue, in the abstract, that an eminent expert cannot give expert evidence about her field of expertise. Yes Prof Gerada had expressed trenchant views about the negative aspects of gambling and the harm it can do to people. She has witnessed that harm very often in her professional life. But she is a highly-respected doctor with expertise in the mental health condition of gambling addiction/disorder. Importantly her depth of experience made her well placed to answer the particular question she was being asked to assist the coroner with: whether gambling, or an undiagnosed gambling disorder, had contributed to this particular death.
An additional and important background factor here was that the submissions objecting to her instruction were not from a disinterested observer, rather the aim of Gamesys was to protect the reputation of its own business. The judge noted that protection of the claimant’s legitimate business interests was not the purpose of this inquest. Although it must equally be that an inquest is not the right forum to be examining the wider socio-political issues regarding the gambling industry. As Morahan reminds us “an inquest remains an inquisitorial and relatively summary process. It is not a surrogate public inquiry.”5
Were Prof Gerada being to be invited to give evidence concerning the regulation of the gambling industry or the safeguarding of problem gamblers, then Gamesys’ objections to an expert who appeared to have fixed views might have had more traction. But that was not, and should not be the evidence that was being sought from her as a doctor.
Consider if an oncologist with specialist expertise in lung cancer had publicly expressed trenchant views about the risks of smoking cigarettes and stated that they should be taxed at a far higher rate to reduce their use. That should not be any bar from that expert assisting a coroner to establish the cause of a deceased’s lung cancer. The Coroner’s position since the PIRH had been that
“I am conscious and cautious of the inquest appearing to become involved in the political aspects of safeguarding potential problem gamblers, because, as the parties are aware, that is not an arena I can enter”.
Mrs Justice Lang endorsed that statement saying at §37: “On the evidence before the Court, the Coroner intends to ensure that the evidence given by Professor Gerada and others does not stray beyond the circumstances of Mr Adams’ death.”
One might think that Gamesys ‘lost’ this application, given permission was refused them, but they do leave court with a formal judicial endorsement of the limitations that are to be placed on the scope of this forthcoming inquest. It seems that Professor Gerada will not be invited to comment on safeguarding potential problem gamblers. Although if the inquest’s determinations do now extend beyond the directly causative factors in this death we might yet see a further application.
Footnotes
[1] R (Mack) v HM Coroner for Birmingham [2011] EWCA Civ 712; [2011] Inquest LR 17
[2] R v Coroner for Lincolnshire ex parte Hay [1999] 163 JP 666, at §46
[3] See Lord Woolf MR in Fields v Leeds City Council [2011] 2 CPLR 129 As approved by the Court of Appeal in R (Factortame) v Transport Secretary (No. 8) [2003] QB 381.
[4] Bux v General Medical Council [2021] EWHC 762 (Admin) at §22 to §33.
[5] R(Morahan) v HMAC West London [2022] EWCA Civ 1410