Inquest blog series – Conflicts of interest and separate representation: don’t get caught out…

It is the stuff of nightmares for anyone acting for a public or private organisation in an inquest – a conflict of interest between the organisation and a witness falling under that organisation’s umbrella, to whom you are providing legal support, coming to light at the eleventh hour.  Separate representation for the witness is needed.  The inquest needs to be adjourned.  With all of the resulting distress to the bereaved family.  Not to mention the Coroner’s ire and the costs implications.  So how best to guard against this eventuality?

The starting point

In most inquests, it is common for the legal team acting for an organisation who has been given interested person status for the purposes of section 47 of the Coroners and Justice Act 2009 not only to represent that organisation but also to take care of the interests of employees or former employees who are called as witnesses.  Routinely, Counsel for that organisation will be allowed by Coroners to ask questions last of such witnesses and make submissions of law in relation to their involvement.  This approach has a lot to recommend it.  It affords legal support to the organisation’s witnesses from a team with in-depth knowledge of the case.  It assists the Coroner with the practicalities of obtaining the witness evidence required for the inquest.  It avoids unnecessary and costly multiplication of representation.  There may, however, be witnesses who, for reasons of conflict with the organisation or other organisational witnesses, require separate, independent legal representation.  Where conflicts do arise they must be identified and representation separated to meet professional obligations.
When might a conflict arise?

The inquisitorial rather than adversarial nature of inquest proceedings reduces the likelihood of conflicts to some degree.  However, the fact that an organisation has no “case to put” does not necessarily mean that none will arise.  The most common examples of situations where there is the potential for conflicts of interest to arise include the following:

1. Where a witness has been disciplined or dismissed by the organisation in relation to their involvement in matters being explored in the inquest;
2. Where a witness is critical of a material system or policy which the organisation stands by;
3. Where there are material allegations made by one organisational witness against another.

In addition, in some circumstances, the seriousness of allegations being made against a witness by another interested person in and of itself makes it more appropriate for that witness to have separate representation, even if, strictly speaking, no conflict arises.

What are the risks if a potential conflict is not appropriately identified and managed?

In addition to the points made at the outset, there is the potential for breach of professional obligations and there may be prejudice to a witness’ chance of a fair trial in subsequent proceedings if they are unable, because they have not been afforded separate and independent representation, to raise a particular concern.

Spot potential conflicts early

It is important to identify potential conflicts early.  This requires early consideration of likely organisational witnesses and any accounts already provided by those individuals.  Often, internal reviews and / or independent investigations will have been conducted before the inquest and accounts obtained for those purposes.  Clear cases of a conflict will often be apparent from the reports from these reviews / investigations.  If matters are less clear cut then obtaining early advice from Counsel on any potential representation issues can pay dividends in the future.

Assess the risk of an actual conflict eventuating

In order to assess the risk of an actual conflict eventuating, consideration needs to be given to whether the evidence a witness will give brings them into direct conflict with the organisation or other organisational witnesses, having proper regard to the context of an inquisitorial process and not a trial.  Sometimes this will not be clear on the face of the accounts given in the context of previous reviews / investigations.  A key opportunity to positively assess the risk of a conflict eventuating is provided at the disclosure stage of the inquest proceedings.   Be proactive and apply a critical eye, with potential conflict issues in mind.

Have a process in place for identifying and managing conflicts

Having a clear process in place for identifying and managing conflicts throughout the inquest proceedings is important.  The process in place will likely depend on the scale of the inquest(s), the size of the legal team acting for the organisation and the organisation’s policy on representation (and separate representation) for individual witnesses.  In larger scale inquests, it may be advisable to allocate responsibility for assessing the risk of conflicts to a particular person or team who can have initial contact with any witnesses for whom there are any concerns about a potential conflict.

Communicate with the Coroner

Tell the Coroner as soon as possible if the organisation’s legal team will not be looking after the interests of any key organisational witnesses, particularly if the organisation will not be funding separate legal representation, to minimise the chance that representation issues will impact upon the inquest process.

In a nutshell …

•    Give early consideration to potential conflicts and the potential need for separate and independent representation;
•    Proactively assess the risk of an actual conflict eventuating;
•    Have a process in place for identifying and managing potential conflicts; and
•    Communicate with the Coroner about representation issues.

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Authors

Emma Price

Call 2007

Related areas

Inquests

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