Coronial insights from across the Irish sea

Healthcare providers involved in inquests are increasingly alert to questions of privilege and disclosure, particularly where expert evidence is commissioned for the purpose of an inquest.

A recent Northern Ireland case, Drake (application for judicial review), will be of interest to professionals dealing with disclosure requests for expert reports obtained for an inquest.

The Drake case arose from an inquest into a hospital death, where the bereaved family commissioned an expert psychiatric report specifically for the inquest. Although they obtained this report, the family opted not to rely on it or disclose it to the coroner. In response, the coroner issued a notice compelling the production of the report, prompting the family to challenge this decision by way of judicial review.

The Northern Ireland High Court upheld the coroner’s decision, confirming that an expert report commissioned solely for the purposes of an inquest does not attract litigation privilege. Since inquests are inquisitorial rather than adversarial, privilege cannot be claimed in the same manner as in civil proceedings.

While Drake is a Northern Ireland decision, the statutory framework is closely aligned with that in England and Wales. Sections 17A and 17B of the Coroners Act (Northern Ireland) 1959 are very similar to Schedule 5 of the Coroners and Justice Act 2009, which outlines coroners’ powers in England and Wales.

The reasoning adopted in Drake is likely to be applicable to Coroners’ Courts in England and Wales when coroners seek disclosure of expert reports commissioned by interested parties.

For a helpful practitioner’s perspective on the decision, readers may also wish to read Bridget Dolan KC’s blog post on Drake. Bridget sits as an assistant coroner and is co-author of the Chief Coroner’s Bench Book, and her analysis provides useful additional context on the scope of coroners’ disclosure powers and the limits of privilege in the inquest setting.

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