Are interrogatories in vogue?
Litigation Ireland
A recent Court of Appeal decision(1) has reminded practitioners that interrogatories – essentially a series of questions involving yes or no answers – should not be disregarded as a litigation tool. Although leave of the court is required in most High Court litigation before interrogatories can be deployed, the decision is a reminder that the test for obtaining such permission is not as difficult to meet as is often perceived. Consequently, parties should not dismiss the possibility of delivering interrogatories as a useful tool in order to narrow issues in dispute.
The case arose out of a life assurance policy which the the widower and daughter of the deceased assured (the plaintiffs) sought to enforce against the defendant insurance company. The defendant contended that the contract was one of utmost good faith and, in breach of same, the deceased failed to disclose all material facts relating to her medical history.
With a view to narrowing issues, and thereby shortening the trial and reducing costs, the defendant served a notice to admit facts on the plaintiffs. A six-month delay ensued before a response issued. The response involved a bare refusal to admit the facts with no further explanation. The defendant's solicitors wrote again, this time enclosing draft interrogatories dealing with the same issues. The plaintiffs did not engage and the defendant proceeded to issue an application seeking leave to deliver the interrogatories, in respect of which no replying affidavit was delivered. The application was heard by Judge Barr in the High Court and his judgment refusing permission to deliver any of the interrogatories was issued on April 21 2015. The defendant appealed.
Judge Kelly, for the Court of Appeal, quoted briefly from the High Court judgment and recited the relevant Rules of the Superior Courts relating to interrogatories (Order 31, Rules 1 to 11). He drew specific attention to Order 31, Rule 2, which provides that in considering whether to give leave the court must consider any previous offer made. In that context, he was critical of the plaintiffs' failure to engage and he also drew attention to the rules requiring objections to be considered as part of the court's determination.
He referred specifically to the Supreme Court decision in J & LS Goodbody Ltd v Clyde Shipping Co Ltd(2) where Judge Walsh made the following observation:
"I would also like to express my agreement with the view expressed by the learned High Court judge that interrogatories ought to be used more than they are. This procedure and all other pre-trial procedures which are available should be encouraged to close anything which tends to narrow the issues which have to be tried by the court and which will reduce the area of proof must result in considerable saving of time and money which cannot but be beneficial to the parties and to the administration of justice in general."
Kelly further cited Walsh to the effect that:
"One of the purposes of interrogatories is to sustain the plaintiff's case as well as destroy the defendant's case and that interrogatories need not be confined to facts directly in issue but may extend to any facts, the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue. Furthermore, the interrogatory sought need not be shown to be conclusive on the question in issue, but is sufficient if the interrogatory sought should have some bearing on the question and that the interrogatory might form a step in establishing the liability. It is not necessary for the person seeking leave to deliver the interrogatory to show that it is in respect of something he does not already know."
Kelly complained that this judgment "is largely forgotten and the exhortation contained in it is for the most part ignored". He went on to observe that:
"Often the delivery of interrogatories can obviate the necessity for expensive and time-consuming discovery, can dispose of issues prior to trial, can lessen in the number of witnesses and result in an overall shortening of trials. In many cases which lend themselves to the delivery of interrogatories the procedure is simply ignored…
Since of the decision of the Supreme Court in Goodbody's case, litigation has increased enormously in quantity, complexity and cost. It is high time for the exhortation of the Supreme Court of 1967 to be acted upon."
He also suggested that the observations of the Supreme Court "deserve to be brought to the attention of practitioners since many appear to have a very restricted view of the circumstances in which interrogatories may be used" and was clear that "robust questions may be posed on a much wider basis than is generally appreciated".
Here, Kelly noted that the interrogatories had been refused in the High Court because of perceived unfairness, which Kelly looked at in some detail. He concluded that there was nothing unfair or unjust about them and there was no evidence from the plaintiffs to that effect to resist the application. Although the interrogatories needed to be slightly recast, they served a clear litigious purpose and, as a matter of probability, would save significant costs and shorten the trial. The Court of Appeal set aside the High Court order and scheduled revised interrogatories to its judgment.
The case is useful because it confirms that interrogatories still have a role to play in High Court litigation. Since leave of the court is required in most cases, the use of interrogatories has fallen into disuse. This decision highlights that, as a practical matter, they can be useful and, given their endorsement by the Court of Appeal and the reminder of their utility, it may be that they are now back in vogue. The decision is certainly a flag to practitioners that interrogatories should not be discounted as an option in appropriate cases.
For further information please contact Gearoid Carey at Matheson by telephone (+353 1 232 2000) or email (gearoid.carey@matheson.com). The Matheson website can be accessed at www.matheson.com.
(1) McCabe v Irish Life Assurance plc [2015] IECA 239.
(2) Unreported Supreme Court, May 9 1967. Kelly also made reference later in the judgment to High Court decisions approving interrogatories which save costs and promote fair and efficient conduct of the case – Woodfab Ltd v Coillte Teo [2000] 1 IR 20 and Money Markets International Ltd v Fanning [2000] 3 IR 215.
Gearóid Carey
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