A Coroner's Powers In Respect Of Expert Reports And How Litigation Privilege Plays A Role In These Circumstances

• Published date: 02 November 2020
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: Hill Dickinson
• Author: Catherine Egan

Background

When assessing care given to a patient ahead of an inquest, it is not uncommon to obtain independent expert evidence to assist. If the report has solely been obtained to assist the inquest preparation or the trust's internal investigations, this would usually be disclosed to the coroner as a matter of routine.

The position may be slightly different however if the expert evidence has been obtained, at least in part, to investigate the potential of a litigation claim running parallel to the inquest. If the expert is critical, admissions are usually made ahead of the inquest in the interests of openness and transparency, and these are communicated to the coroner. The approach has recently given rise to an issue in a case however where the coroner ordered that the basis for the admissions be disclosed, to include a copy of the expert report. The question arose as to whether the coroner could order disclosure, or whether the report was a privileged document.

What is litigation privilege?

Litigation privilege protects confidential written or oral communications between a client and their lawyer and between third parties. It is there to protect clients and their lawyers obtaining documents without worrying that these documents will be scrutinised by the opposing party.

One key aspect for litigation privilege to exist is that the dominant purpose must be to obtain legal advice, or to assist or aid in the conduct of litigation. Documents are not protected if they are used in court later, as this makes them a public document and no longer confidential.

Does litigation privilege stop the coroner from ordering disclosure?

The case of Linda Ketcher and Carol Mitchell -v- One of the Coroners for...