Re Margaret Drake’s Application for Judicial Review [2026] NICA 17 (judgment here)
The Northern Ireland Court of Appeal has revisited a tricky question in inquisitorial proceedings: when the bereaved have obtained their own expert report for an inquest and decide against relying upon it, can the coroner compel its production?
As is often the case, the answer is fact-sensitive, but on the facts of this case the Court of Appeal overturned the decision of the judge below and quashed the Coroner’s refusal to revoke a notice requiring a family’s expert report to be provided to her.
Although this was a decision interpreting sections 17A and 17B of the Coroners Act (Northern Ireland) 1959, given the symmetry between the Northern Irish statutory scheme and coronial powers in England and Wales, it is still highly persuasive and so the principles applied require close analysis by inquest practitioners and coroners in England and Wales.
The background
The inquest concerned a death from hanging in a hospital. The Coroner had obtained an disclosed her own psychiatric expert evidence, as had the NHS Trust involved. That prompted the family to also obtain their own psychiatric report. Having received it, the family told the Coroner that they did not intend to rely upon or disclose it.
The Coroner considered the NICA case of Re Ketcher & Mitchell[1] and held that the expert’s report was not privileged and so she required its production to her under s.17A of the Coroners Act (Northern Ireland) 1959. The Coroner intended that the report should be disclosed to her alone in the first instance and that (following a two stage procedure derived from the Worcestershire[2] case), after a review by her for potential relevance, disclosure to the interested persons would follow only if the disclosure threshold was met.
The family’s application to revoke the production requirement was refused by both the Coroner and the first instance judge, who upheld the Coroner’s decision and the approach she adopted (see our earlier blog here). The first instance judge held that the report did not attract privilege and that there was no global principle of non-disclosure of a non-privileged expert report commissioned by the bereaved. However, the judge considered that following a two-stage approach that separated out the second disclosure decision from the questions of production to the Coroner alone, was both appropriate and wholly within the procedural discretion of the Coroner. The judge ordered the report to be provided.
When the family appealed that decision the Court of Appeal confirmed the general principle that litigation privilege ordinarily did not apply to a report solely obtained for inquisitorial proceedings. However, the Court took a very different view from the judge below on how to then approach the issues of production and disclosure, and what was the correct question to consider.
Adopting the two stage ‘Worcestershire’ approach was an error which misdirected the statutory test said the Court. TheWorcestershire case had involved seeking disclosure from a public authority of material that was said to attract public interest immunity. That case had also been framed in terms of the disclosure being necessary to determine the scope of the inquest. The present case was different in several ways and hence the issue in play was far more nuanced.
Drake’s case involved a private interest of the next of kin and the issue of public interest immunity did not arise at all. In addition, the scope of the inquest in Drake’s case had already been defined. Two psychiatric expert opinions were already available, and if the Coroner had considered that she needed a third opinion she could have sought it herself (but she had not done so). Relevant disclosure from the public authority involved had already occurred and before the family’s report came to light the Coroner had evidently considered herself capable of proceeding with the inquest on the available evidence.
The Court of Appeal considered that once the family objected to production of their report, the Coroner had to undertake the full balancing exercise at that stage and consider whether the public interest in conducting the fullest possible investigation justified overriding the family’s interest in obtaining its own expert advice.
There are two stages involved in handling material in inquests: (1) production to the court and (2) disclosure onwards to IPs. When deciding whether an objection to the production of material to the Coroner was reasonable what might happen at the later disclosure stage, (or even the fact that there might be such a stage), was not a relevant consideration.
The Court considered it difficult on the facts to see why the family’s report was essential to the conduct of this inquest. The notice was therefore quashed and the issue remitted for reconsideration.
Comment
Drake gives families neither a general right to suppress an inconvenient expert report nor coroners an automatic entitlement to see one.
Rather, the Court held that a coroner seeking production needs to balance all the competing interests in play. Essentially, the Coroner must consider the public interest in the information in question being obtained for the purposes of the inquest, having regard to the likely importance of the information and the need for the fullest possible information so that the inquest can answer the statutory questions which is to be balanced against the next of kin’s entitlement to be involved in the procedure to the extent necessary to safeguard their legitimate interests, including their entitlement to obtain expert reports.
To carry out this exercise coroners should identify what the unseen report is realistically expected to contribute to the inquest. If scope has already been settled and expert evidence already covers the issues within scope, the likely forensic utility of yet another expert report will be part of the proportionality and reasonableness assessment. Importantly, an assumed opportunity to decide about onward disclosure at a later second stage once the report has been obtained and scrutinised should not impact upon that exercise.
For coroners, careful reasoning should therefore identify why the additional material is expected to assist the investigation. For family representatives, any objection to production is likely to be stronger if it can be demonstrated that scope is settled, the relevant issue is already adequately covered by independent evidence, and compulsory production would inhibit effective participation through privately obtained expert advice.
In the absence of a claim of PII the test for disclosure onwards is relevance.
On closer analysis it seems what had led the Coroner and the first instance court astray here was placing reliance upon the Worcestershire case as if it applied to all production and disclosure – it does not. Unless public interest immunity (‘PII’) has been asserted the second stage of Worcestershire, where the coroner applies a public interest test to onward disclosure, will not exist.
In the absence of a PII claim, once the scope of an inquest has been defined then the only criteria for disclosure to IPs will be whether the documents relevant to that scope
No litigation privilege unless adversarial
One might have thought the litigation privilege point raised in Ketcher & Mitchell was now almost settled. Privilege does not attach in circumstances where the dominant purpose falls outside of adversarial proceedings. This is the position even though it can give rise to the odd situation that if a death will also potentially lead to civil proceedings then an expert report commissioned to assist in both sets of proceedings would attract the privilege, (subject to the ordinary dominant-purpose test).
However the court seems to have introduced a further uncertainty by opening up the question of what ‘adversarial proceedings’ actually means. The Court stated that they knew of no authority to suggest inquests were adversarial proceedings – but then chose to throw a mini hand grenade into the mix by expressing their view that “This is undoubtedly a fact specific and context specific issue. However, arguably when in this case the Trust obtained its own report the case took on an adversarial nature as the next of kin obtained their own report, Doubtless to comment or respond to the Trust’s report.”
One might wonder how it would ever be workable for the answer to whether litigation privilege arises to depend upon the conduct of the interested persons in the particular proceedings.
References
[1] [2020] NICA 31, [2021] NI 306, [2020] Inquest Law Reports 76.
[2] Worcestershire County Council v HM Coroner for Worcestershire [2013] EWHC 1711(QB)