Ketcher & Anor, Re Application for Judicial Review

Factual and Procedural Background

This appeal arises from a decision refusing to quash a coroner's order requiring the appellants to disclose an expert medical report obtained in connection with inquest proceedings. The appellants are the mothers of two soldiers who died by hanging while serving at a military barracks in Northern Ireland. Following the deaths, a Service Inquiry was conducted by the military to investigate the circumstances, and the coroner held preliminary hearings. Dissatisfied with the coroner-appointed expert report, the appellants obtained their own expert psychiatric report. The coroner required disclosure of this report, which the appellants challenged through judicial review proceedings. The High Court refused to quash the order, leading to this appeal.

Legal Issues Presented

1. Whether section 17A and 17B of the Coroners Act (Northern Ireland) 1959 incorporates litigation privilege into inquest proceedings, thereby protecting expert reports from compulsory disclosure.
2. Whether litigation privilege applies to coronial proceedings involving an Article 2 claim under the European Convention on Human Rights.
3. Whether requiring disclosure of expert reports to the coroner and other interested parties places the next of kin at a disadvantage contrary to Article 2 of the Convention.
4. Whether compelling disclosure of the expert report prejudices ongoing civil proceedings by forcing disclosure not permissible in those proceedings.

Arguments of the Parties

Appellants' Arguments

• The appellants argued that section 17A and 17B of the 1959 Act incorporates the doctrine of litigation privilege into inquest proceedings, protecting their expert report from disclosure.
• They contended that common law litigation privilege applies to inquest proceedings, relying on tests formulated in previous case law.
• They submitted that forcing disclosure of their expert report places them at a disadvantage relative to state authorities, contrary to Article 2 of the Convention.
• They argued that disclosure would irreparably prejudice their civil proceedings by compelling disclosure of material that would otherwise be privileged.

Respondent's Arguments

• The coroner and Ministry of Defence submitted that expert reports are not privileged in coronial proceedings and that the coroner has statutory powers to require disclosure.
• They maintained that inquest proceedings are fundamentally inquisitorial rather than adversarial and thus litigation privilege does not apply.
• They argued that the appellants were free to participate fully in the inquest without asserting privilege over expert reports.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Three Rivers District Council and Others v Government of the Bank of England (No 6) [2005] 1 AC 610	Tests for litigation privilege: (a) litigation must be in progress or contemplation; (b) communications must be for the sole dominant purpose of litigation; (c) litigation must be adversarial.	The court accepted these tests as authoritative and applied them to determine that litigation privilege does not apply in inquisitorial inquest proceedings.
R (Morgan Grenfell Ltd) v Special Commissioners of Income Tax [2003] 1 AC 563	Legal professional privilege is a fundamental right and must be expressly or impliedly overridden by statute.	The court noted no express or necessary implication in the Coroners Act to override privilege, but held litigation privilege does not arise in inquests.
Re L (A Minor) [1997] AC 16	Distinction between legal advice privilege and litigation privilege; litigation privilege applies only in adversarial proceedings.	The court relied on this case to conclude that litigation privilege does not apply in non-adversarial, investigative proceedings like inquests.
Waugh v British Railways Board [1980] AC 521	Established that litigation privilege applies only to documents prepared for the dominant purpose of litigation.	Supported the proposition that litigation privilege is limited to adversarial proceedings.
R v Derby Magistrates' Court, ex parte B [1996] AC 487	Legal advice privilege protects confidential communications between client and lawyer.	Referenced to explain the distinction between legal advice privilege and litigation privilege.
R (Middleton) v West Somerset Coroner [2004] 2 AC 182	Article 2 ECHR obligations require effective investigations by coroners where state responsibility is implicated.	The court recognized the adversarial elements arising from Article 2 obligations but maintained the inquisitorial nature of inquests.
R (Hambleton and others) v Coroner for the Birmingham Inquests (1974) [2018] EWCA Civ 2081	Confirmed the inquisitorial nature of coronial proceedings.	Reaffirmed that inquests are fundamentally inquisitorial and not adversarial.
Three Rivers District Council and Others v Bank of England (No 5) [2003] QB 1556	Confirmed that litigation privilege is a creature of adversarial proceedings and does not exist in non-adversarial contexts.	Supported the court’s conclusion that litigation privilege does not apply in inquests.

Court's Reasoning and Analysis

The court began by examining whether litigation privilege applies in coronial proceedings involving Article 2 claims. It distinguished between legal advice privilege and litigation privilege, focusing on the latter. Litigation privilege traditionally protects documents prepared for use in adversarial litigation. The court found that coronial proceedings are primarily inquisitorial, with the coroner controlling the investigation, determining the scope, and questioning witnesses without strict evidentiary rules or pleadings.

Although Article 2 imposes obligations that introduce adversarial elements—particularly between the family and state bodies—the court held that this does not transform the fundamentally inquisitorial nature of inquests into adversarial litigation. The court relied on established case law, including Re L and the Three Rivers decisions, which restrict litigation privilege to adversarial proceedings. It rejected the appellants’ argument that litigation privilege applies, noting that the statutory framework and case law do not support extending such privilege to inquest proceedings.

The court further considered the statutory provisions of sections 17A and 17B of the Coroners Act (Northern Ireland) 1959, which empower the coroner to require disclosure but exempt documents that could not be compelled in civil proceedings. The court interpreted "civil proceedings" as distinct from coronial proceedings and concluded that litigation privilege applies in civil proceedings but not in coronial inquests.

Regarding the public interest and procedural fairness, the court acknowledged that compulsory disclosure of expert reports might discourage properly interested persons from conducting investigations. However, in this case, the coroner already possessed an expert report he considered sufficient. The likely importance of the appellants’ report was modest, and no application was made under section 17A(4)(b) to challenge the reasonableness of disclosure. The court noted that the public interest in obtaining the report for the inquest was not sufficiently strong to override the interests of the appellants in preparing their case.

Finally, the court found no interference with the appellants’ rights under Article 6 of the Convention in civil proceedings, as the expert report was not obtained for the dominant purpose of that litigation and thus was not privileged.

Holding and Implications

The court DISMISSED the appeal, affirming the decision to require the appellants to disclose their expert psychiatric report to the coroner.

The decision confirms that litigation privilege does not extend to coronial inquest proceedings, even those involving Article 2 obligations, because such proceedings are fundamentally inquisitorial rather than adversarial. The ruling clarifies the scope of statutory powers under the Coroners Act (Northern Ireland) 1959 concerning disclosure of documents and limits the applicability of litigation privilege in this context. The direct effect is that properly interested persons cannot withhold expert reports on the basis of litigation privilege in inquests, although the coroner must consider reasonableness and public interest in disclosure requests. No new precedent beyond this statutory and case law interpretation was established.