Introduction

The case of Ketcher & Anor, Re Application for Judicial Review ([2020] NICA 31) brought before the Court of Appeal in Northern Ireland on June 3, 2020, addresses a pivotal legal question concerning the extent of litigation privilege within coronial proceedings. The appellants, Linda Ketcher and Carol Mitchell, mothers of two soldiers who died by hanging, sought to prevent the disclosure of their independently obtained expert medical reports to the coroner. These reports were intended to supplement the official findings of a coroner's inquest into their sons' deaths. The central issue revolved around whether such documents could be protected under litigation privilege during inquests, which traditionally possess an inquisitorial nature.

Summary of the Judgment

The Court of Appeal dismissed the appellants' appeal, upholding the High Court's decision to compel the disclosure of their expert reports. The court held that litigation privilege, which typically shields documents created for the purpose of litigation, does not extend to coronial proceedings. Coronial inquests are fundamentally inquisitorial rather than adversarial, and as such, do not fall within the ambit of litigation privilege. The judgment emphasized that coronial processes aim to uncover the facts surrounding a death for the public interest, rather than to adjudicate disputes between opposing parties.

Analysis

Precedents Cited

The judgment extensively referenced several key cases that delineate the contours of litigation privilege. Notably:

• Re L (a minor) [1997] AC 16: This case distinguished between legal advice privilege and litigation privilege, emphasizing that the latter applies only within adversarial litigation contexts.
• Three Rivers District Council and Others v Gov of the Bank of England (No 6) [2005] 1 AC 610: This case further clarified the conditions under which litigation privilege operates, reaffirming its association with adversarial proceedings.
• Re (Hambleton and others) v Coroner for the Birmingham Inquests (2018) EWCA Civ 2081: Reinforced the inquisitorial nature of coronial proceedings, contrasting them with adversarial systems.

These precedents collectively reinforced the court's position that litigation privilege is intrinsically linked to adversarial legal processes and is not applicable to the inherently investigative and non-adversarial nature of coronial inquests.

Legal Reasoning

The court's legal reasoning hinged on distinguishing the fundamental characteristics of adversarial versus inquisitorial proceedings. Litigation privilege is designed to protect communications and documents prepared exclusively for the purpose of litigation, ensuring procedural fairness and preventing undue disadvantage. However, coronial inquests in Northern Ireland are primarily inquisitorial, focusing on fact-finding for the public interest rather than conflict between opposing parties.

The court analyzed the amendments introduced by the Coroners and Justice Act 2009, particularly sections 17A and 17B, which provide coroners with enhanced powers to require the production of documents relevant to an inquest. Section 17B explicitly states that a person cannot be compelled to produce documents if they could not be required to do so in civil proceedings, implicitly excluding litigation privilege from coronial proceedings.

Furthermore, the court examined Article 2 obligations under the Convention on Human Rights, which demands effective investigations into deaths involving state responsibility. While recognizing the need to protect the interests of the next of kin, the court concluded that allowing litigation privilege would impede the coroner's duty to thoroughly investigate and determine the circumstances surrounding a death.

Impact

This judgment sets a significant precedent in Northern Ireland, clarifying that litigation privilege does not extend to coronial inquests. The decision ensures that coroners retain broad investigative powers to access necessary documents, thereby enhancing the thoroughness and transparency of inquests. However, it also underscores the delicate balance between the public interest in uncovering the truth behind deaths and the rights of individuals to conduct independent investigations without mandatory disclosure.

Future cases will likely reference this judgment when addressing the scope of litigation privilege in non-adversarial settings. Additionally, coroners and legal practitioners must navigate the boundaries of document disclosure carefully, especially in contexts where the preparation for an inquest may intersect with potential or ongoing litigation.

Complex Concepts Simplified

Litigation Privilege

Litigation privilege is a legal protection that shields certain communications and documents from disclosure during legal proceedings. It primarily applies to materials created specifically for the purpose of litigation and is rooted in ensuring fairness in adversarial legal systems. There are two main types: legal advice privilege (covering communications with legal advisers) and litigation privilege (covering documents prepared for litigation).

Legal Professional Privilege

Legal professional privilege encompasses both legal advice privilege and litigation privilege. It safeguards the confidentiality of communications between a client and their legal adviser, ensuring that such interactions remain private unless the client consents to disclosure. This privilege is fundamental to the administration of justice, fostering an environment where clients can seek legal counsel openly and honestly.

Inquisitorial vs. Adversarial Proceedings

Adversarial proceedings involve opposing parties presenting their cases to an impartial judge or jury, with each side seeking to prevail based on the evidence and arguments presented. In contrast, inquisitorial proceedings are conducted by an investigator (such as a coroner) who actively seeks out the truth, questioning witnesses and gathering evidence without the structure of opposing parties.

Conclusion

The Court of Appeal's decision in Ketcher & Anor, Re Application for Judicial Review [2020] NICA 31 decisively clarifies the application of litigation privilege within coronial proceedings in Northern Ireland. By affirming that litigation privilege does not extend to inquisitorial inquests, the court reinforces the primacy of thorough and transparent investigations in determining the circumstances surrounding deaths. This judgment not only delineates the boundaries of legal privileges in non-adversarial settings but also ensures that coronial inquests can effectively fulfill their role in serving the public interest without undue hindrance from legal protections designed for adversarial litigation. Moving forward, this precedent will guide legal practitioners and coroners in balancing the rights of individuals with the imperative of comprehensive investigations.