Are expert reports in inquests privileged and protected from disclosure?

In 2020, we analysed the position regarding privilege and expert reports at inquest.

Five years on, we review here whether that position has changed and what you need to consider. Please also refer to our recent review of the new Coroner’s Bench Book here.

Inquests & Disclosure 

Coroners’ powers used to be restricted to calling witnesses to attend inquests to give evidence, having little power to enforce disclosure of documentation. 

In 2005, Lord Carswell in Three Rivers District Council and Others v Gov of the Bank of England (No 6) [2005] 1 AC 610 stated that communications between parties or their solicitors and third parties, for the purpose of obtaining information or advice, are privileged if the following conditions are satisfied:  

(a) litigation is in progress or is contemplated;  

(b) the communications must have been made for the sole or dominant purpose of conducting that litigation;  

(c) the litigation must be adversarial, not investigative or inquisitorial. 

Inquests were deemed to fall outside the litigation process and be investigative in nature.  

The Coroners and Justice Act 2009 (the Act) then brought significant reforms to the Coroner system and criminal justice in England and Wales. One key aspect of the Act – paragraph 1 of Schedule 5 - is that it enhanced the powers of Coroners, particularly in terms of evidence production, giving Coroners the power to summon witnesses and to compel the production of evidence (through the issuing by the Coroner of a “Schedule 5 Notice” or a formal disclosure order). Overall, the Act aims to create a more effective, transparent, and responsive justice and coroner service for victims, bereaved families, and the public. 

The Coroners (Inquests) Rules 2013, Part 3 rules 13-15 – Disclosure – then gave Coroners improved power to insist on evidence being produced, summarised as follows: 

1. Request for Disclosure: Interested persons can request documents held by the Coroner. The coroner must provide or make these documents available for inspection as soon as reasonably practicable. 
2. Managing Disclosure: Coroners must manage the disclosure process, ensuring relevant documents are shared while considering any restrictions or costs associated with disclosure. The Coroner considers if the document is relevant to the investigation. Note that it is relevance to the investigation that is the key, and therefore the scope (or likely scope) of the inquest may need to be first determined before the question of relevance can be answered. 
3. Restrictions: Certain documents may be restricted from disclosure if they could harm the public interest, there is a statutory or legal prohibition on disclosure, if the request is unreasonable, or if the document relates to criminal proceedings (whether in progress or contemplated).  
4. Evidence Collection: Coroners have the authority to compel the production of evidence, including written statements, documents, and items for inspection, examination, or testing. 

Documents that could be disclosed include postmortem reports, any other report that has been provided to the Coroner during the course of the investigation (this could include, for example, the expert report provided to the Coroner by an Interested Person), and any document the Coroner considers relevant to the inquest. 

As set out in the Chief Coroner’s Law Sheet No.3, “The Worcestershire Case: Disclosure to the Coroner, not to the public”, Worcestershire County Council and Worcestershire Safeguarding Children Board v HM Coroner for the County of Worcestershire [2013] EWHC 1711 (QB) illustrates that “the public interest in the pursuit of a full and appropriately detailed inquest may outweigh a public interest claim for non-disclosure of a report into a death, particularly when the disclosure is to the coroner rather than to the public.”  

The Worcestershire case sets out a two-stage process for disclosure:  

Stage 1 - The Coroner requests all reports or other material which he/she believes to be relevant for the purpose of assessing the scope and content of his/her inquiry, pointing out that this is disclosure to the Coroner only. 

If there is objection to disclosure, the Coroner should consider relying on the decision in the Worcestershire case to show that the public interest in disclosure should, in the circumstances of the particular case, outweigh the public interest in non-disclosure and that any disclosure needs to be sufficiently full for the Coroner’s statutory purposes.  

Stage 2 - Disclosure of that material to the public, through interested persons, will be made in the usual way, giving those who may wish to argue against disclosure sufficient opportunity to do so. 

In 2020, Mr Justice McCloskey in the Court of Appeal in Northern Ireland in Ketcher and Mitchell [2020] NICA 31 had to consider a judicial review application. The applicants (the mothers of two soldiers who died at their barracks) commissioned an expert report in response to a report prepared by a consultant psychiatrist instructed by the Coroner. The applicants sought judicial review of the Coroner’s decision to compel their disclosure of their report on the basis that it was subject to legal privilege. They also claimed that the disclosure of the report placed them at a disadvantage to state authorities, contrary to Article 2 of the ECHR. 

The outcome in Ketcher reiterated the position in Three Rivers by confirming that litigation privilege does not apply to inquests. While this does not bind UK courts, it is likely to be persuasive.  

In Article 2 inquests, the obligations on the coronial process are enhanced. In Ketcher, the court cited a 2017 review into deaths in police custody, which found that inquests in such circumstances are almost always adversarial in nature and need to be recognised as such. Had it not been for the established line of case law, the court would have preferred to find in favour of the appellants and that litigation privilege should apply in this kind of case.  

On 24 January 2025, the Chief Coroner issued a new “Bench Guidance” by way of a comprehensive guide covering all coronial work to ensure consistency and best practice.  

Chapter 12 considers Disclosure of documents and, importantly, reiterates the two -step process set out in the Worcestershire Coroner case (above) and refers to Chief Coroner’s Law Sheet No. 3 (above).  

Chapter 14 considers Expert evidence. It notes that coronial legislation does not set down rules or regulations specifically relevant to expert evidence and invites Coroners to be guided by the principles regarding experts and their evidence set out within Part 35 of the Civil Procedure Rules.   

Inquests & Disclosure of Expert Reports 

Chapter 14 of the Bench Guidance also refers to:  

• Where an Interested Person has already obtained an expert report and presents this to the court. It remains a decision for the Coroner whether it is necessary to admit this written evidence and/or to call that expert to give additional oral evidence. Where the expert’s evidence is both relevant to matters within the scope of the inquest and not already available from another source, the Coroner should be open to such a request (but there is no requirement to do so). However, it may be the case that the Coroner has reason to instruct their own expert instead or additionally (for example, for impartiality). 
• Where an Interested Person has obtained an expert report that they do not wish to share with the Coroner. It notes this situation is complex. Ketcher confirmed that litigation privilege does not apply to reports obtained by Interested Persons solely for the purpose of an inquest. In theory such a report might, therefore, be obtained from a reluctant Interested Person by means of a schedule 5 notice. However the Northern Ireland Court of Appeal in Ketcher considered that, in circumstances where the Coroner already had a report from an expert that he had felt was a sufficient basis for proceeding with the inquest, then, even in the absence of litigation privilege, the public interest would not usually favour ordering disclosure of a report obtained by an Interested Person - there was a public interest in encouraging Interested Persons to carry out appropriate investigations in the preparation of their cases and compulsory disclosure of such reports as a matter of course would be likely to discourage such investigations. 

Summary and Discussion 

Interested Persons may wish to obtain expert evidence to assess the risk of liability in any future litigation. Expert opinion may support admissions of negligence being made which may narrow the issues at inquest and reduce costs. It may indicate that other issues are relevant to the death than those currently being considered; that other Interested Persons should be contacted; or it may prevent the Coroner from issuing a Prevention of Future Deaths report which may limit reputational damage.    

NHS Trusts and NHSR/insurers can still secure litigation privilege over expert reports so long as they are obtained purely to deal with (e.g. where the Claimant dies midway through litigation and an inquest is opened), or with the threat of civil or criminal litigation rather than solely for the inquest.  

Privilege can still be waived by those who have commissioned a privileged report. 

Parties will have to consider disclosure of any expert evidence on a case by case basis and be aware of the knock on effects of disclosure for their clients in order to advise them fully. Sometimes, it may work in a parties’ favour to voluntarily disclose an expert report at an inquest.  

Neither Ketcher nor the Bench Guidance consider the situation where the Coroner discovers an Interested Person has a non-privileged expert report that they are not willing to disclose and where the Coroner does not yet have their own expert evidence – presumably they envisage the issuing of a Schedule 5 notice in these circumstances.