Expert Evidence at Inquests: Appointment, Independence and Privately Instructed Experts

Introduction

Expert evidence can determine the direction – and conclusions – of an inquest.

In healthcare cases, an expert may be required to address the standard of treatment or the medical cause of death. Prison, police and mental health inquests may raise questions concerning risk assessment, systems of care, restraint or emergency response. Other investigations may require evidence from toxicologists, engineers, accident investigators or professionals working in highly specialised fields.

The need for expert evidence is not, however, established merely because the subject matter is complex or because an Interested Person would prefer an independent opinion. The Coroner controls the investigation and retains a broad discretion over the evidence required to answer the statutory questions.

For Solicitors, the practical task is therefore not simply to identify a potentially helpful expert. It is to demonstrate why a defined issue within the proper scope of the inquest cannot safely or fairly be resolved without expert assistance.

This article considers both experts appointed by the Coroner and experts instructed privately by an Interested Person. It also addresses independence, privilege, the framing of instructions, conflicting opinions and the extent to which CPR Part 35 provides a useful, but incomplete, model for coronial practice.

The legal and practical starting point

The coronial legislation does not contain a self-contained procedural code equivalent to CPR Part 35.

The starting point is the Coroner’s duty to investigate under section 1 of the Coroners and Justice Act 2009, together with the matters to be ascertained under section 5. Expert evidence should assist the Coroner, or the jury, in answering those statutory questions and resolving matters properly falling within the scope of the investigation.

The Chief Coroner’s Bench Guidance on Expert Evidence (hereafter “the Bench Guidance”) provides the principal practical framework. It confirms that Coroners may be guided by CPR Part 35 and Practice Direction 35, although those provisions do not directly govern coronial proceedings.

The central duty is familiar:

“The duty of an expert is to provide independent assistance to the court by way of objective and unbiased opinion.”

That duty applies whether the expert was originally selected by the Coroner, the bereaved family, a public authority or another Interested Person. The expert is not retained to advance the interests of the person who identified, instructed or pays them.

That resemblance to civil practice should not obscure the procedural difference. An inquest is an inquisitorial investigation. It has Interested Persons rather than opposing parties, and the Coroner carries the responsibility for determining the scope of the investigation, obtaining sufficient evidence and deciding which witnesses should be called.

When is expert evidence necessary?

Expert evidence is not required in every case involving medical, scientific or technical issues.

In R (Mack) v HM Coroner for Birmingham and Solihull [2011] EWCA Civ 712, §§8-9, Toulson LJ described the Coroner as having:

“…a wide discretion – or perhaps more appropriately a wide area of judgment – whom it is expedient to call.”

The Court will not ordinarily substitute its own assessment of which witnesses should be called. The question on review is whether the Coroner’s decision fell outside the broad range of reasonable and fair case-management decisions open to them.

There is therefore no general right to require the Coroner to obtain an independent report. Nor is the Coroner obliged to appoint the particular expert proposed by an Interested Person.

In R (Goodson) v HM Coroner for Bedfordshire and Luton [2004] EWHC 2931 (Admin); [2006] 1 WLR 432, the Court rejected the proposition that an independent expert was invariably required merely because clinical treatment was in issue.

Similarly, R (Chambers) v HM Coroner for Preston and West Lancashire [2015] EWHC 31 (Admin) demonstrates that independent psychiatric evidence will not be required in every case involving mental health treatment or a possible suicide. Existing clinical and factual witnesses may already provide sufficient evidence.

There is, however, an important countervailing principle: where a material issue concerns matters outside the ordinary knowledge of the Coroner or jury, the absence of suitable expert evidence may produce an insufficient investigation. Questions of medical causation, acceptable professional practice or the operation of specialist systems may be incapable of reliable resolution through factual witnesses alone.

That concern was recognised in R (Wright) v Secretary of State for the Home Department [2001] EWHC Admin 520. On the facts of some cases, independent expert evidence may also be required to satisfy the procedural obligation under Article 2: R (Warren) v Assistant Deputy Coroner for Northamptonshire [2008] EWHC 966 (Admin), §§42 and 45.

The relevant question is therefore not whether expert evidence would be interesting, reassuring or tactically useful. It is whether the evidence is necessary to resolve a material issue within the proper scope of the inquest.

Connecting the proposed evidence to scope

A request for expert evidence is unlikely to succeed if it is expressed only at a general level.

It is not ordinarily enough to submit that the death involved complicated medical care, that the family lacks confidence in an internal investigation or that an independent perspective would be desirable.

The proposed evidence should be linked to a defined issue. The Bench Guidance, drawing upon R (Takoushis) v HM Coroner for Inner North London [2005] EWCA Civ 1440; [2006] 1 WLR 461, recommends that an Interested Person identify both the professional discipline required and the issue which can only properly be determined or resolved through that expertise.

A properly structured application should therefore explain:

The precise issue requiring expert assistance;
Why that issue falls within the scope of the inquest;
What evidence is already available;
Why the existing witnesses cannot adequately resolve the issue;
The discipline and particular expertise required;
The questions the proposed expert would be asked;
Whether the evidence may affect causation, the conclusion or a possible Prevention of Future Deaths Report; and
Why the proposed instruction is reasonable and proportionate.

The application should also address any realistic alternative. Written questions to an existing witness, a supplementary statement or a narrower expert instruction may sometimes resolve the issue without unnecessary cost or delay.

Appointment, expertise and independence

Where expert evidence is required, the Coroner will ordinarily determine the discipline, identity and terms of instruction.

Interested Persons may be invited to suggest suitable experts or comment upon proposed candidates. Agreement is often desirable, particularly where the appointment will carry substantial cost or the evidence may become central to the investigation. The final decision remains one of coronial discretion.

Before making an appointment, the Coroner should consider whether the proposed expert:

Possesses expertise and experience directed to the actual issues;
Understands the duty of independence and the inquisitorial nature of the jurisdiction;
Can complete the work within the required timetable;
Is available to attend the hearing if required;
Has identified any potential conflict of interest; and
Can undertake the work at a proportionate cost.

The most distinguished professional within a broad discipline will not necessarily be the correct expert. The relevant question is whether that person has the particular expertise required to address the issue arising from the death.

Recent clinical or practical experience may also be important. In R (Duffy) v HM Deputy Coroner for Worcestershire [2013] EWHC 1654 (Admin), concerns arose during the inquest about whether the appointed expert had sufficient recent clinical experience to address significant aspects of the case. The decision illustrates the need to scrutinise expertise by reference to the questions actually requiring an answer, rather than relying upon a broad professional title.

Gamesys: prior views, conflicts and fairness

The recent decision in R (Gamesys Operations Ltd) v HM Senior Coroner for London Inner South [2025] EWHC 659 (Admin) provides important guidance on challenges to the suitability and independence of a proposed expert.

The Coroner was investigating the death of a man where gambling, or an undiagnosed gambling disorder, might have contributed to the death. The Coroner proposed instructing Professor Dame Clare Gerada. Gamesys objected to her appointment, relying upon her publicly expressed views concerning gambling and connections which it said compromised her impartiality. It proposed a different psychiatrist.

The Coroner decided to instruct both experts and invited the Interested Persons to comment upon the proposed letters of instruction. Gamesys sought judicial review before either expert had reported.

Lang J refused permission. The Coroner’s approach was described as “scrupulously fair and balanced” [34]. The selection of witnesses, including experts, fell within the Coroner’s broad area of judgment and the threshold for establishing irrationality was correspondingly high.

The Court also rejected the suggestion that the test governing apparent bias on the part of a judicial decision-maker should simply be transferred to an expert witness. The central questions were whether the witness had the relevant expertise and whether they understood and could comply with the duty of independence owed to the court.

An expert’s previous expression of firm professional, academic or policy views does not therefore make that person automatically incapable of providing independent evidence. A materially different problem may arise where the expert’s opinion is, or may be, influenced by a personal interest or genuine conflict.

The decision also illustrates the importance of controlling the scope of the instruction. The Coroner had made clear that the evidence would concern the circumstances of the individual death and would not become a wider inquiry into gambling policy or regulation.

For Solicitors challenging a proposed expert, the objection should be directed to matters which genuinely affect the fairness or sufficiency of the investigation. Those may include:

A lack of expertise in the precise field;
A personal or professional conflict capable of influencing the opinion;
Evidence of a closed mind concerning the particular issue;
Instructions which invite the expert beyond their competence;
A failure to disclose relevant connections; or
A proposed remit which exceeds the scope of the inquest.

A general allegation that the expert has previously taken a view on the subject is unlikely to be sufficient.

Privately instructed experts

An Interested Person may obtain expert advice privately. This can be valuable before the Coroner has decided whether an independent report is required.

A privately instructed expert may assist a legal team to:

Understand technical records;
Identify gaps or deficiencies in the available evidence;
Decide whether to seek a Coroner-appointed expert;
Formulate submissions on scope;
Prepare questions for factual or professional witnesses;
Test the reasoning of an existing expert;
Identify the need for evidence from another discipline; or
Consider related civil, regulatory or disciplinary proceedings.

Obtaining a report does not, however, confer an automatic right to place it before the inquest or to call the expert.

The Coroner must decide whether the evidence is relevant, necessary and sufficiently reliable to assist the investigation. Where the report addresses a matter within scope and the evidence is not adequately available from another source, the Bench Guidance indicates that the Coroner should be open to its admission.

The Coroner may nevertheless decide that the proposed evidence duplicates an existing report, addresses an issue which can be resolved through factual witnesses, strays beyond scope or comes from an expert who does not possess the necessary specialist expertise. The Coroner may also prefer to appoint a different expert independently.

Solicitors should therefore identify the coronial purpose of the instruction from the outset. A report prepared solely by reference to CPR Part 35 may not address the questions the Coroner needs to determine. Conversely, a coronial report may not be sufficient for later civil proceedings without further instruction.

The separate article Can an Inquest Lead to a Civil Claim? considers the relationship between coronial evidence and subsequent civil proceedings in greater detail.

Adoption by the Coroner

A Coroner may adopt an expert originally instructed by an Interested Person.

This can avoid duplication, reduce delay and make use of an expert who has already considered the material. In R (LePage) v HM Assistant Deputy Coroner for Inner South London [2012] EWHC 1485 (Admin), §§61-63, the Court recognised that publicly exploring an opinion obtained by the bereaved may sometimes be important as a matter of practical justice and in addressing legitimate concerns about the death.

Adoption should not be automatic. Before relying upon the expert as the court’s own witness, the Coroner may properly seek:

The original letter of instruction;
Relevant correspondence between the expert and the instructing Solicitor;
Any earlier report or provisional opinion;
Details of information supplied orally;
Confirmation of any potential conflict; and
An explanation of the basis upon which the expert was selected.

Once adopted, the expert becomes the Coroner’s witness. The Interested Person who originally instructed the expert should ordinarily have no further unilateral contact without the knowledge and agreement of the Coroner.

The original instructing party will not normally recover from the coronial authority the cost of work undertaken before adoption. From the point of adoption, however, the Coroner will usually assume responsibility for reasonable fees relating to further work and attendance.

The change in status should be recorded clearly. Uncertainty about whether the expert remains privately instructed or has become the court’s witness can create difficulty over communications, supplementary instructions and payment.

Privilege and an unfavourable report

The position becomes more difficult where an Interested Person obtains a report but does not wish to disclose it.

Solicitors should not assume that a report obtained solely for an inquest will attract litigation privilege.

In Re Ketcher and Mitchell [2020] NICA 31, the Northern Ireland Court of Appeal held that litigation privilege did not attach to reports obtained by Interested Persons solely for the purpose of an inquest. The proceedings were fundamentally inquisitorial and did not determine a dispute between opposing parties in the manner required for litigation privilege.

That decision is not binding upon the courts of England and Wales, but it is expressly considered in the Bench Guidance.

In principle, a Coroner may seek production of such a report through a notice under Schedule 5 to the Coroners and Justice Act 2009. The absence of privilege does not, however, mean that disclosure should routinely be compelled.

In Ketcher, the Coroner already had expert evidence which he considered sufficient. The Court recognised a public interest in encouraging Interested Persons to investigate the evidence and obtain appropriate expert advice. Routine compulsory disclosure of every unfavourable opinion could discourage proper preparation.

The position may differ where:

The report contains evidence necessary to investigate a central issue;
No other expert evidence is available;
Part of the opinion has been deployed selectively;
The report has been referred to in submissions or correspondence;
The expert is proposed for adoption; or
The report was obtained for both the inquest and contemplated civil litigation.

Where a report is also obtained for adversarial civil proceedings, separate questions of privilege may arise. The purpose and circumstances of the instruction will be important.

The safest course is to consider privilege, scope and the possible consequences of disclosure before commissioning the report. An Interested Person should not proceed on the assumption that an unfavourable coronial opinion can simply be withheld.

Instructions, reports and changing evidence

A well-drafted letter of instruction is fundamental.

The Bench Guidance states that instructions should be in writing and expressed neutrally. The letter should identify the purpose of the report, the scope of the investigation and the issues requiring expert assistance.

The expert should not be asked to determine disputed facts which fall to the Coroner or jury.

Where alternative factual scenarios arise, the expert should ordinarily be asked to provide an opinion upon each material scenario. For example:

Would the opinion differ if a particular observation was or was not undertaken?
Would the outcome have changed if treatment had commenced at an earlier identified time?
Does the opinion depend upon one witness’s account being accepted?
What are the consequences if a disputed entry in the records is inaccurate?
Is the available evidence sufficient to express a final opinion?

This avoids an expert unconsciously selecting a preferred version of the evidence and presenting it as established fact.

The instruction should distinguish between:

The applicable professional standard;
Whether conduct departed from that standard;
Whether an act or omission made a causative contribution;
Wider systemic or organisational issues; and
Matters bearing upon a current risk of future deaths.

An expert may properly assist with professional standards and causation. They should not be invited to determine civil liability, make findings of credibility or decide what conclusion the Coroner should return.

Although CPR Part 35 does not apply directly, its requirements provide a useful model for the contents of the report. The expert should identify their relevant qualifications, the material considered, the factual assumptions made, the methodology used and the reasoning supporting each conclusion. They should acknowledge any recognised range of professional opinion, address material which may undermine their view and make clear where an opinion is provisional, qualified or outside their expertise.

The report should also be intelligible to a non-specialist Coroner, jury and bereaved family. Technical precision is essential, but unexplained terminology or dense professional shorthand can obstruct rather than assist the investigation.

Keeping the opinion current

Expert opinions are frequently obtained before the evidential picture is complete.

The expert may initially receive medical records but not later witness statements, an internal investigation but not its underlying documents, or policies without evidence of how they operated in practice.

Before the final hearing, Solicitors should confirm that the expert has received the complete relevant material, including later disclosure, updated witness statements, competing opinions and any final ruling on scope. Where the evidential foundation has changed, a supplementary report or written clarification may be required.

An opinion which appears definitive but rests upon incomplete evidence may cause serious difficulty when the missing material emerges during oral evidence.

Conflicting and concurrent expert evidence

The existence of conflicting opinions does not necessarily require each expert to repeat their report sequentially from the witness box.

The first task is to identify the true source of disagreement. Experts may appear to disagree when they are in fact proceeding upon different factual assumptions, answering different questions, relying upon guidance from different periods or applying different concepts of causation.

The Coroner may direct the experts to meet and produce a joint statement identifying the matters agreed and those which remain in dispute. This reflects the approach in CPR 35.12, although the direction derives from the Coroner’s management of the investigation rather than the Civil Procedure Rules.

The Coroner may prepare an agenda after receiving suggestions from the Interested Persons. The meeting itself should ordinarily remain a professional discussion between the experts, without the Coroner, Interested Persons or legal representatives being present.

The joint statement should record:

The matters agreed;
The matters not agreed;
The reasons for disagreement;
Whether the disagreement depends upon disputed facts; and
Whether further information could resolve it.

Solicitors should not treat the meeting as an opportunity to negotiate a favourable position through the expert. The opinions and language must remain those of the experts.

Concurrent evidence

Concurrent expert evidence, sometimes described as “hot-tubbing”, may be particularly suitable for an inquisitorial hearing.

Rather than hearing each expert separately, the experts give evidence together. The Coroner addresses the evidence issue by issue, inviting each expert to explain their position and respond to the other.

The process may expose the precise basis of disagreement more quickly, reduce repetition and enable misunderstandings to be corrected immediately. It may also help the Coroner or jury compare competing reasoning and avoid the need to recall an earlier witness after a later expert raises a new point.

The experts may, under the Coroner’s supervision, be permitted to put questions to one another.

Concurrent evidence requires careful preparation. The issues and sequence of questions should be identified in advance, while each Interested Person must retain a fair opportunity to ask relevant questions.

It will not be suitable in every case. Substantial differences of discipline, factual foundation or terminology may require some separate evidence before useful concurrent discussion can take place.

The Coroner’s evaluation of expert opinion

An expert assists the fact-finder. The expert does not replace the Coroner or jury.

The Coroner may accept all, part or none of an expert’s opinion, provided the ultimate findings are rationally available on the evidence. The weight attached to the opinion may depend upon:

The expert’s specialist qualifications and experience;
The quality of the reasoning;
The accuracy of the factual assumptions;
The completeness of the material considered;
Whether competing opinions were addressed;
The expert’s response to questions; and
The consistency of the opinion with the wider evidence.

Even an uncontradicted expert opinion is not automatically determinative. It may be rejected where the reasoning is inadequate, the assumptions are not established or the conclusion falls outside the expert’s proper field.

Conversely, a factual witness’s professional experience may provide valuable evidence without making that witness an independent expert. Solicitors should distinguish between evidence about what a treating clinician did and thought at the time, and retrospective expert opinion concerning acceptable professional practice or causation.

Whether an expert must attend the final hearing will depend upon the significance and contentiousness of the opinion. Written evidence may be sufficient where the report is clear and uncontroversial. Oral evidence is more likely to be required where the opinion concerns a central question of causation, the factual basis is disputed, experts materially disagree or clarification is required.

The decision belongs to the Coroner. An Interested Person seeking oral evidence should identify the questions which genuinely require an answer rather than assert a general wish to cross-examine.

The separate guide What Conclusions Can a Coroner Reach? explains how the Coroner or jury records the formal outcome of the investigation.

Practical Takeaways

Expert evidence should be tied to a defined issue within the scope of the inquest.
The Coroner has a broad discretion over whether an expert is required and whom to appoint.
An Interested Person should identify the discipline, issue and proposed questions, rather than merely request an independent review.
The expert’s duty of independence applies regardless of who first instructed or pays them.
Firmly expressed professional or policy views do not automatically make an expert unsuitable.
A privately obtained report cannot automatically be placed before the inquest.
Adoption by the Coroner changes the expert’s status, future communications and ordinarily responsibility for subsequent fees.
Privilege and the possible consequences of disclosure should be considered before privately commissioning a report.
Instructions should be neutral and should address material alternative factual scenarios.
CPR Part 35 provides useful guidance, but it does not govern coronial proceedings.
Expert meetings, joint statements and concurrent evidence may narrow disagreements and improve the final hearing.
The Coroner or jury remains responsible for determining the facts and reaching the conclusion.

Final Thoughts

Expert evidence is most effective when it responds to a genuine evidential need rather than being obtained as a matter of routine.

For Solicitors, the most important work often takes place before an expert is appointed. The issue must be defined, connected to scope and translated into questions which the proposed expert is qualified to answer. The expert must then receive sufficient material, be instructed neutrally and understand that the duty is owed to the court.

The inquisitorial nature of an inquest does not reduce the importance of rigorous expert evidence. It changes the context in which that evidence is obtained and tested.

A carefully managed expert process can clarify complex causation, identify the boundaries of professional practice, narrow disputes and assist the Coroner to conduct a sufficient investigation. A poorly defined instruction can instead increase cost, delay the hearing and draw the inquest towards matters it is neither required nor permitted to determine.