“Privilege?’ – Not in this Court
Ian Pennock considers the decision in Drake (Margaret) Application for Judicial Review’ [2025] NIKB 70 on when a coroner can compel disclosure of an expert report
Summary
The case arose after a family obtained a psychiatric report on issues central to the death, then declined to disclose it to the coroner when the report proved unhelpful. The coroner issued a notice under section 17A of the Coroners Act (Northern Ireland) 1959 requiring production of the report. The family challenged that decision by way of judicial review.
The High Court upheld the coroner’s decision. It confirmed that a coroner may adopt a “two-stage” approach:
- first requiring production of a document to the coroner; and
- only afterwards deciding whether the document should be disclosed to other properly interested persons (“PIPs”).
The case is important because it makes clear that there is no automatic immunity for privately commissioned inquest expert reports. Solicitors acting for bereaved families, state bodies and other interested persons should proceed on the basis that an expert report obtained solely for an inquest may have to be produced to the coroner even if the commissioning party later decides not to rely upon it.
Background
The case concerned the death of Stephen Moore, who died in hospital after being found suspended by a shower cord. A central issue in the inquest was whether he had been suffering from delirium, whether staff recognised it, and whether any failure to diagnose or treat it contributed to his death. The coroner had already obtained psychiatric evidence from Professor Palazidou. The Belfast Health and Social Care Trust later obtained its own psychiatric report from Dr Armstrong.
The family considered that Dr Armstrong’s report undermined aspects of the coroner’s expert evidence and sought an adjournment so that they could obtain their own psychiatric evidence. The coroner agreed, expressly stating that she did not yet have a sufficiently clear picture on the central issue of delirium and that additional expert evidence would assist her.
The family then obtained a report from Dr Husain. However, they informed the coroner that they did not intend to rely upon it and would not disclose it. In response, the coroner issued a notice under section 17A requiring production of the report. The family applied for revocation of the notice. When that application failed, judicial review proceedings followed.
Relevant Legislation and Comparison with England and Wales
The case turned on sections 17A and 17B of the Coroners Act (Northern Ireland) 1959, which were inserted by the Coroners and Justice Act 2009.
Section 17A gives a coroner the power to require a person to:
- attend to give evidence;
- produce documents or other material; or
- prepare a written statement.
Section 17A also allows the recipient of a notice to apply to revoke or vary it on the basis that the requirement is unreasonable in all the circumstances.
Section 17B preserves ordinary civil law protections. A person cannot be compelled to provide evidence or documents if they could not be compelled to do so in civil proceedings. Public interest immunity principles also continue to apply in the inquest context.
These provisions are closely analogous to the powers available to coroners in England and Wales under Schedule 5 to the Coroners and Justice Act 2009. In practical terms, the powers are materially the same. The importance of Drake is therefore not confined to Northern Ireland. Its reasoning is likely to be influential in England and Wales where coroners are considering whether to compel production of privately obtained expert evidence.
One important feature of the legislation is that sections 17A and 17B concern production of material to the coroner, rather than onward disclosure of that material to other interested persons. That distinction became central to the outcome of the case.
The Earlier Decision in Ketcher and Mitchell [2020] NICA 31
Much of the argument in Drake centred on the earlier Northern Ireland Court of Appeal decision in Re Ketcher and Mitchell.
Ketcher involved soldiers who had died in barracks. The coroner had obtained psychiatric reports. The families obtained their own reports but declined to disclose them. The Court of Appeal held that litigation privilege did not apply because inquests are investigative rather than adversarial proceedings. It followed the reasoning in Three Rivers Distict Council -v- Governor and Company of the Bank of England (No.5) [2005] 1 AC 610 that litigation privilege only applies where proceedings are adversarial in nature.
However, the Court of Appeal in Ketcher had also observed that coroners should be cautious about compelling disclosure of family-commissioned expert reports because doing so might discourage families from obtaining their own evidence in future. Those comments were obiter, but they were relied upon heavily by the applicant in Drake.
The Applicant’s Grounds for Judicial Review
The applicant advanced two principal grounds of challenge.
Ground 1: The Coroner Could Not Adopt a “Two-Stage” Approach
The applicant argued that the coroner had been wrong to treat production to the coroner and later disclosure to PIPs as separate questions.
It was submitted that once the coroner saw the report, onward disclosure to PIPs would become effectively inevitable because the threshold for disclosure in inquests is only “potential relevance”. The applicant argued that the coroner was therefore wrong to assume that she could later revisit the public interest balance after seeing the report.
The applicant further argued that there was no decided authority recognising a public interest in protecting families who commission expert evidence for inquests from later disclosure to other PIPs. It was said that any public interest in encouraging families to investigate a death applied only at the stage of production to the coroner and not at the later stage of onward disclosure.
Ground 2: The Coroner Had Misapplied Ketcher
The applicant also argued that the coroner had wrongly distinguished Ketcher.
It was submitted that Ketcher provided a “strong steer” that coroners should generally decline to compel disclosure where:
- there was already one or more expert report on the issue;
- the coroner was prepared to proceed with the existing evidence; and
- the family had commissioned an expert report but did not wish to disclose it.
The applicant contended that those features were all present in Drake. It was also argued that the differences between the reports of Professor Palazidou and Dr Armstrong were relatively limited and that the coroner did not genuinely need to see Dr Husain’s report.
The Coroner’s Decisions
The coroner rejected the family’s arguments and issued the section 17A notice.
She considered that Dr Husain’s report might materially assist with the central issues in the case, particularly in resolving differences between the existing psychiatric experts. She emphasised that the role of delirium in Mr Moore’s death was the key issue in the inquest and that she still lacked a sufficiently clear understanding of several matters, including:
- whether Mr Moore was suffering from delirium;
- the causes of that delirium;
- whether the causes were treated appropriately;
- whether alternative action should have been taken; and
- whether healthcare staff properly understood delirium and its causes.
The coroner considered that Dr Husain’s report might be “more than modest” in significance and potentially very important. However, she stated that she could not properly determine its relevance without reading it.
She also drew a distinction between:
- disclosure to herself; and
- disclosure to PIPs.
She regarded the public interest in withholding a report from PIPs as stronger than the public interest in withholding it from the coroner. She reasoned that a coroner, as an independent judicial figure, is the guardian of the public interest in the inquest and cannot use the material to the detriment of a PIP in later proceedings.
The coroner therefore decided to require production of the report to herself first and to leave the question of onward disclosure for later consideration.
The Decision of the High Court
The High Court dismissed the judicial review.
It held that sections 17A and 17B concern production of material to the coroner and do not govern onward disclosure to PIPs. The court concluded that there was nothing in the legislation preventing a coroner from adopting a two-stage approach. On the contrary, such an approach was entirely consistent with long-established coronial practice.
The court emphasised that coroners have a broad discretion in how they conduct an inquest and that their duty is to investigate the facts “fully, fairly and fearlessly”. The gathering of potentially relevant evidence is therefore central to the coronial function.
The judge also held that the applicant’s fear that disclosure to PIPs would become inevitable was overstated. Even after inspecting the report, the coroner could still decide that it should not be disclosed at all, or should only be disclosed in redacted form, after balancing the competing public interests.
The court held that Drake was materially different from Ketcher because in Drake the coroner had already identified specific areas in which the undisclosed report might assist. She had adjourned the inquest specifically to allow the family to obtain further expert evidence. She had also made clear that the central issue of delirium remained insufficiently resolved.
The court accepted that Ketcher did not create a general rule against disclosure. Rather, it required an individual balancing exercise in each case. The judge warned against creating a special class of documents immune from disclosure merely because they had been commissioned by the next of kin. That, he said, would effectively create a form of privilege which did not otherwise exist in inquests.
The court also noted that such a rule could have serious consequences. If expert reports could simply be withheld from the coroner, it might allow both inculpatory and exculpatory material to remain hidden. In some cases it could distort the course of an inquest or undermine the state’s ability to discharge its Article 2 investigative obligations.
Commentary
The decision in ‘Drake (Margaret) Application for Judicial Review’ [2025] NIKB 70’ is likely to become one of the leading authorities on when a coroner can compel disclosure of an expert report obtained by a family but not intended to be relied upon at an inquest.
Drake is likely to be welcomed by coroners because it reinforces the inquisitorial nature of inquests. It confirms that a coroner’s task is not simply to referee between competing parties but to obtain the evidence necessary to answer the statutory questions.
The decision also reflects a realistic understanding of how modern inquests operate. Although inquests are formally inquisitorial, many of them — especially Article 2 cases —which involve allegations of state responsibility for a death, inevitably involve protection and advancement of interests of PIPs. Families, NHS bodies, police forces and prisons frequently obtain their own expert evidence. In practice, some of that evidence will be helpful and some will not. Drake makes clear that parties cannot assume they may selectively deploy only the material which supports their position.
At the same time, the judgment does contain important safeguards. It does not mean that every report obtained by a family must automatically be disclosed to everyone else. The two-stage approach endorsed by the court means that coroners retain flexibility. They may inspect the report privately, consider whether it is genuinely relevant, and then determine whether onward disclosure is necessary and proportionate.
For solicitors, that may be the most important aspect of the case. The real battleground may no longer be whether the coroner can see a report at all. Instead, it may become whether the report, or parts of it, should later be disclosed to other PIPs.
Practice Points
- Solicitors should advise clients at the outset that a report obtained solely for the purposes of an inquest may later have to be produced to the coroner.
- The question of dominant purpose remains important. A report obtained principally for contemplated civil litigation may still attract litigation privilege. A report obtained only for the inquest may not.
- If a family wishes to resist disclosure, it is unlikely to be enough simply to rely on Ketcher. Practitioners will need to show why the report is unlikely to add anything meaningful to the evidence already available.
- The strongest arguments against disclosure are likely to be case-specific: that the coroner already has adequate expert evidence, that the undisclosed report is unlikely to assist, and that there is a genuine public interest in protecting the confidentiality of the report.
- If a section 17A notice is issued, practitioners should make an application to revoke or vary the notice under section 17A(4)(b) before commencing judicial review proceedings. The courts are likely to expect that route to be pursued first.
- Solicitors should also focus carefully on the distinction between production and onward disclosure. Even if a report must be produced to the coroner, it may still be possible to argue that it should not be disclosed more widely, or should only be disclosed in redacted form.
- Parties commissioning expert evidence should assume that coroners may ask why the report was commissioned, what issue it addresses, and whether it may assist with disputed issues already identified in the inquest.
- The clearer the coroner’s reasons for wanting the report, the more difficult it will be to resist production. Drake is especially likely to apply where the coroner has already adjourned proceedings specifically to permit a party to obtain additional expert evidence.
Ian Pennock is a member of the Inquests and Inquiries Team at Parklane Plowden Chambers His full profile can be accessed here
