Drake’s Application for Judicial Review [2025] NIKB 70, 12 December 2025, judgment here.
It is clear that litigation privilege cannot arise in respect of reports commissioned for a coroner’s inquisitorial proceedings: the Northern Ireland Court of Appeal (NICA) have already soundly dealt with that point.[1] Bound by House of Lords authority, the NICA held that if an expert report is obtained only for the purpose of an inquest, then no privilege will apply to it.
However, in Ketcher & Mitchell,[2] the NICA made it clear this was their extremely reluctant position. The court gave rather a strong steer that the position of a family who refuse to provide their own expert report to a coroner should usually prevail, even in the absence of privilege.
That position is now re-analysed in some detail in this more recent NI High Court decision. McLaughlin J explains why the position is far more nuanced than Ketcher & Mitchell might suggest at first glance. There is no global principle of non-disclosure and the Coroner in Drake’s Application was entitled to require disclosure to her of a non-privileged expert report commissioned by the bereaved.
Although this case concerns Northern Irish Coronial legislation the disclosure principles discussed here are very likely to apply with equal force to the similarly worded provisions of schedule 5 CJA 2009 in England and Wales – making this case essential reading for anyone with an interest in how privilege and disclosure might operate in our Coroners Courts.
The Background
Stephen Moore fell from a ladder and suffered multiple left-sided rib fractures and a pneumothorax. He was taken to the Royal Victoria Hospital, Belfast, and admitted onto a cardiothoracic surgery ward. Ten days later he was found, deceased, by a member of the nursing staff in a hospital bathroom. He was hanging from a shower cord and had also attempted to cut his wrist. The post-mortem report stated that injuries sustained during the fall did not appear to have played a direct role in his death, however Mr Moore had apparently suffered a period of delirium when in hospital which could have arguably altered his state of mind.
An inquest was opened. Unsurprisingly its scope included: (i) the cause(s) of the delirium; (ii) whether staff were aware that Mr Moore was delirious? (iii) if not, why not? and (iv) what treatment (if any) could have been of benefit to him (v) whether the balance of his mind was disturbed when he died. The Coroner instructed a Consultant Psychiatrist to assist with her inquiry and shared his expert report with all Properly Interested Persons (PIPs).[3]
Shortly before the inquest commenced the Belfast Health & Social Care Trust produced a report from its own independent Consultant Psychiatrist. When that was shared with Ms Drake she considered that it undermined a number of conclusions of the Coroner’s expert and so she asked for an adjournment to obtain her own evidence. The Coroner granted the requested adjournment. When doing so the Coroner remarked that the two expert reports available to her did not provide a sufficiently clear picture of matters in scope and that the further expert evidence the family were to seek would assist her consideration of the central issues.
Four months later the solicitors for Ms Drake informed the Coroner that they had indeed obtained an expert psychiatric report, but that Ms Drake did not intend to rely upon it and so would not be providing the report to the Coroner. In response the Coroner issued a notice pursuant to section 17A of the Coroners Act (Northern Ireland) 1959, requiring Ms Drake to produce the report to her. Ms Drake applied to revoke that notice, relying upon paragraphs 36 and 37 of the decision in Ketcher and Mitchell. When the Coroner refused to revoke the notice a Judicial Review claim was issued.
The relevant legislation
The Coroners and Justice Act 2009[4] (‘CJA’) inserted new provisions[5] into the Coroners Act (Northern Ireland) 1959, which empowers a coroner to issue notices requiring, inter alia, the attendance of witnesses, the production of documents or the preparation of a witness statement. These are very similar to the powers of English and Welsh Coroners found in schedule 5 CJA. The purpose of the amendments to the Northern Irish Act being to “bring Northern Ireland into line with the reformed system in England & Wales.”
Ketcher and Mitchell’s case
In Ketcher & Mitchell the NICA had analysed the common law authorities on litigation privilege and concluded that that litigation privilege only applied if the proceedings were adversarial, rather than investigative or inquisitorial. The Court considered it was bound by the decision of the House of Lords in the Three Rivers case,[6] accordingly, the bereaved’s assertion of litigation privilege in respect of an expert report they had obtained for an inquest alone failed (and their appeal was dismissed).
However, the NICA also made it clear that if it had not been bound by authority, it would have preferred the approach to litigation privilege explained by Lord Nicholls in Re L [1996] 2 All ER 78[7] which may have enabled litigation privilege to extend to the report in Ketcher & Mitchell’s case.
The NICA observed that such cases were rare, as in almost all cases, any expert report would have been obtained for the dominant purpose of the civil claim, and hence attract privilege. The NICA said that a coroner having a power to require disclosure did not mean the power should be used. The discretion to use the power required a public interest calculation and the NICA in Ketcher & Mitchell said[8] that the balance was highly likely to favour the view that a requirement to disclose the report was not reasonable. In coming to that view the NICA considered: (i) that the likely importance of the outstanding report was modest, as the Coroner had no basis for considering that the additional report held would add anything to what his own expert was contributing; and (ii) the Coroner ought to take into account the public interest in encouraging properly interested persons in inquests to carry out appropriate investigations in the preparation of their cases. Compulsory disclosure of such reports as a matter of course would be likely to discourage such investigations.
Disclosure to the Coroner first
Faced with these strong appellate court dicta the Coroner in Ms Drake’s case, having found that the report did not attract litigation privilege, decided the point the other way.
She ordered that the report should be disclosed to her alone in the first instance, followed by review for potential relevance and thereafter disclosure to the PIPs only if the disclosure threshold was met. The Coroner confirmed that, once she understood the content of the report, she would undertake a further public interest balancing exercise considering its relevance to the issues in the scope of the inquest, balanced against the damage which might be done to any competing public interests if disclosure took place. The Coroner considered the starting position in Ketcher & Mitchell was not replicated in Mr Moore’s inquest, as in his case the report may well add to her understanding of the issues. As such the balancing exercise was fundamentally different and the Coroner therefore declined to revoke her order.
The Judicial Review decision
The Applicant challenged the Coroner’s decision, contending that the Coroner erred by proposing disclosure should follow a two-stage process. Ms Drake argued that onward disclosure was ‘inevitable’ as the Coroner would be bound to apply a test of ‘potential relevance’ with a low bar. The highly persuasive comments of the NICA in paragraph 37 of Ketcher & Mitchell should be followed she argued.
Mclaughlin J did not agree. A two-stage approach to production and disclosure was both appropriate and wholly within the procedural discretion of the Coroner. The judge also remarked that it was far from clear that onward disclosure of the report to PIPs was ‘inevitable’.
Section 17A (like Schedule 5 CJA) applied to the production of documents to the coroner and not to the dissemination or disclosure of documents to other participants. It was a vital mechanism by which a coroner was able to gather relevant evidence and hence to ensure the effectiveness of an inquest. It allowed a coroner to secure access to documents which may shed light on issues of central importance, both inculpatory or exculpatory of those potentially implicated in the death.
When deciding whether to issue a notice in the first instance, section 17A was silent as to the role of any countervailing public interests and so there was nothing in the language or background to these provisions to support the Applicant’s contention that a two-stage approach to disclosure of material produced after commencement of an inquest was either impermissible or otherwise inappropriate.
The duty of a coroner is to investigate the facts ‘fully, fairly and fearlessly’[9] and a coroner has a very broad discretion as to how their inquest should be conducted. The test for onward disclosure of documents is whether the documents are “potentially relevant.” The primary reason why the test is drawn so broadly is to enable PIPs to make informed submissions to the coroner on the proper scope of the inquest and thereafter to participate in it by making submissions on any further evidence to be gathered or on the questioning of witnesses.
Where disclosure by a coroner may cause damage to countervailing public interests of importance, a coroner is fully entitled (if not obliged) to review that disclosure and, if appropriate, to decline to disclose materials or to do so subject to redactions. Such an exercise will take place after the coroner has inspected the material and has determined whether it is potentially relevant, having considered representations from the disclosing person or persons. In the judge’s view none of these principles had been altered in any way by the new provisions governing production of documents inserted by the 2009 Act
The Coroner had appropriately considered Ketcher & Mitchell but here the facts of were materially different. She was entitled to find that the expert report may assist her with issues within the scope of the inquest on which there were areas of disagreement between the existing two experts. The Coroner had adjourned the inquest on that basis and was entirely justified to now adopt a two-stage approach to disclosure. It was relevant that a coroner, as a judicial figure, acts as the guardian of the public interest in an inquest they are hearing; a coroner can make no use of the information in the report to the detriment of a PIP in any further proceedings after an inquest has concluded. The report should therefore be disclosed to her.
Commentary
As McLaughlin J makes clear, the NICA in Ketcher & Mitchell did not lay down any binding principle for all future cases. An individual balancing exercise must take place in every case with reference to the documents in dispute, not by their membership of a class. Indeed, if it were the case that an expert report obtained by the bereaved was never disclosable this would be to create, by default, precisely the type of litigation privilege which the Court of Appeal held did not apply to an inquest.
Indeed one might wonder whether the “strong steer” given by the NICA in Ketcher & Mitchell might have arisen out of their perception of inquests as being an adversarial process. The NICA’s judgment spoke of the PIPs having “a case” to put before the court. Particularly so in an Article 2 inquest involving an allegation of state responsibility for the death, where the involvement of the next of kin was, in the NICA’s view “plainly to represent and protect their private interests” and “trying to achieve an opposing outcome to that of the state body” with parties seen as “advancing their respective cases.” The NICA decision therefore put much weight on the public interest in allowing the report obtained by the bereaved to remain private because this might encourage properly interested persons in inquests to carry out appropriate investigations in the preparation of their case.
Excusing production in the public interest because inquests are adversarial sits rather uncomfortably with the overall coronial duty to seek out the truth wherever it may lie. No one has a case in an inquest, it is the coroner’s inquiry and no one else should be permitted to push the narrative in any direction. To do so would run wholly contrary to the fundamental purposes of an inquest. There would be justifiable outrage on the part of the bereaved were a state authorities supported in keeping secret an expert report commissioned for an inquest that contained relevant and material information in order to protect their own ‘case’.
When a coroner is deciding whether to invoke their power of compulsory production a coroner must simply focus on the specific circumstances of that inquest and the relevance or potential relevance of the document. As McLaughlin J observed, to act otherwise would, in effect, create different rules of disclosure for expert reports commissioned by the bereaved, in anticipation of an inquest. Not only would this amount to the creation of a class of documents, which is subject to more restricted disclosure principles, but it is extremely difficult to justify the existence of such a class when it is not clear why reports commissioned by the bereaved should be treated differently from expert reports commissioned by other inquest participants.
Importantly though, this does not mean that such reports once obtained must be disclosed onwards to inquest participants. Disclosure under the s.17A or schedule 5 is to the coroner alone. This decision goes on to endorse the approach (albeit taken in a different context) in the Worcestershire case[10] which, although decided prior to the commencement of Schedule 5 to the 2009 Act, sets out the two stage disclosure process.
If the report is arguably relevant then, it is only at the second stage, with the coroner now fully informed of its content, that consideration of the existence and the extent of any public interest must be the focus before it might be further disclosed.
Footnotes
[1] Re Ketcher and Mitchell [2020] NICA 31, [2021] NI 306, [2020] Inquest Law Reports 76.
[2] See our earlier blog of this case here
[3] The term PIP is still used under Northern Irish legislation
[4] Section 49(2) and Schedule 11 which came into force on 29 February 2016, [S.R.2016/23].
[5] Sections 17A, 17B and 17C
[6] Three Rivers District Council v Governor and Company of the Bank of England (No.5) [2005] 1 AC 610
[7] At §32
[8] §37
.[9] R (Jamieson) v Coroner for North Humberside [1995] QB 1, §26
[10] Worcestershire County Council v HM Coroner for Worcestershire [2013] EWHC 1711, [2013] Inquest Law Reports 179.