Interrogatories

Cases

Crofter Properties Ltd v. Genport Ltd.

[2001] IEHC 169 (30th November, 2001)Judgment of Mr. Justice McCracken delivered the 30th day of November, 2001

1. This is an application pursuant to Order 31 of the Rules of the Superior Courts authorising the defendant’s to deliver interrogatories to the plaintiffs in relation to the defendants counterclaim in these proceedings. In these proceedings it is alleged by the defendant that certain telephone calls were made by the plaintiff, its servants or agents to the South East Regional Crime Squad of the British Police which were of a malicious, untrue and defamatory nature. One of the issues which undoubtedly arises in the case is, assuming the calls were made, whether they were made by somebody acting as servant or agent for the plaintiff. The defendant has sought and received third party discovery from Eircom listing all other telephone calls made from the relevant lines on the same day as calls are alleged to have been made to the South Eastern Regional Crime Squad, and hopes to assist its case by showing that at least some of these calls were made to persons who had some connection with the plaintiff, from which no doubt I will be asked to draw the inference that the telephone lines were being used by persons doing business on behalf of the plaintiff, although the lines are not in the plaintiff’s name. The defendant believes it has identified some twenty eight of these telephone numbers, and now seeks to raise interrogatories to oblige the plaintiff to confirm under oath the owners of these telephone lines and their connection with the plaintiff.

 

2. The circumstances in which leave to deliver interrogatories should be granted were considered in some depth by the Supreme Court in the unreported case of J & L S Goodbody Ltd. v. The Clyde Shipping Co. Ltd. (Judgment delivered on 9th May, 1967). In that case Ó Dálaigh C. J. said at page 3 of the judgment:-

 

“While Order 31 Rule (2) of the Rules of the Superior Courts provides that leave to deliver interrogatories shall be given only when it is considered necessary either for disposing fairly of the cause or matter or for saving costs, it is well established that one of the purposes of interrogatories is to sustain the plaintiffs case as well as to destroy the defendants case (see the judgment of this court in Keating v. Healy) 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 interrogatories sought need not be shown to be conclusive on the questions in issue but it is sufficient if the interrogatories sought should have some bearing on the question and that the interrogatories 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.”

 

3. There is no doubt that, as pointed out by Costello J. in Mercantile Credit Company of Ireland v. Heelan [1994] 2 IR 105, that the use of interrogatories is contrary to the general principle that cases should be heard on oral evidence, and also, as he said at Page 116:-

 

“Although the rule allows interrogatories to be served for the purpose of saving costs, the interest of doing justice between the parties is the paramount consideration in applications under it and so an order will be refused if a fair hearing of the issues between the parties might be prejudiced by it, even if the costs of the proceedings could be reduced by making the order.”

 

4. It also must be borne in mind that interrogatories, like discovery, must not be used as a fact finding or fishing exercise. It is for this reason that traditionally, and indeed in the appendix to the Superior Court Rules, the form that interrogatories should take is to commence the interrogatory with the phrase “Is it not the case that”.

 

5. In the present case, therefore, the matters which I have to consider are, firstly whether they are necessary either for disposing fully of the matter or for saving costs, secondly whether they are relevant in the sense as explained by Ó Dálaigh C. J. in the judgment quoted above, thirdly whether they should not be allowed because they are simply fishing and fourthly whether in any event the plaintiffs would be prejudiced unfairly.

 

6. It is strongly urged by the defendant that there would be a considerable saving of costs, as if their queries are not answered they would have to call each of the people that they believe to be the holders of the relevant telephone lines and ask questions to them. In reply, the plaintiff says that a witness already called in this action, namely Miss Caroline Devine, was the secretary of the company, and might well have the answers to most of the interrogatories, and that she could be recalled.

 

7. This is a very strange and unusual case. The case has been part heard, and it is true that Miss Devine was called as a witness by the defendants. The fact remains that she is the person the defendants believe is most likely to have made the telephone calls in issue in the case, and she certainly would not be a co-operative witness, and almost certainly would have to be called under subpoena, and the defendants would not know which of the interrogatories she could answer and which she could not answer. I have no doubt that considerable time and cost would be saved by the delivery of interrogatories, provided they are permissible under the other headings I have to consider.

 

8. The second point I have to consider is whether they are relevant. The interrogatories refer to a number of different people, some of whom are relatives of officers of the plaintiff, others of whom are undoubtedly connected to the plaintiff, as for example the solicitors on record for them in the present action, while others are to persons who may or may not be connected to the plaintiff. The answers to the interrogatories will not in themselves determine whether the specific calls made on the relevant days were made by somebody as servant or agent of the plaintiff, but I am satisfied that, in the words of Ó Dálaigh C. J.:-

 

“The interrogatories sought should have some bearing on the question and that the interrogatory might form a step in establishing the liabilities.”

 

9. I am going to be asked to draw inferences from the replies to the interrogatories, and I think they are clearly relevant for that purpose.

 

10. The third question is whether the interrogatories could be considered to be too wide or to be simply fishing. Insofar as that may be so, they would have to be disallowed, and I will deal with that matter below.

 

11. The fourth question, and an extremely relevant one is whether the answering of the interrogatories would unjustly prejudice the plaintiff. It has been strongly argued that, in effect, this is an attempt to undermine the evidence already given by Miss Devine, which was not particularly helpful to the defendants. I cannot see that establishing these facts by way of interrogatories is in any way more unjust or prejudicial to Miss Devine or to the plaintiff than to call the twenty eight persons named as witnesses. There is no doubt that the defendant would be entitled to do this, and I certainly know of no principle whereby, once a witness for a party gives evidence of a certain fact, that another witness may not be heard to give contrary evidence, even if both witnesses are called by the same party. Accordingly in my view the interrogatories, insofar as they are proper interrogatories to be asked, should be allowed.

 

12. With regard to the individual interrogatories, I shall deal firstly with an amendment which has been requested in similar form to a number of interrogatories. To take an example, proposed interrogatory 5.2 reads:-

 

“Is it not the case that the said Paschal McArdle is or was an associate of Hugh Tunney and/or Caroline Devine and/or Crofter Properties Ltd.?”

 

13. It is sought to add to this the words “and if so which one”. There are a number of occasions where alternatives have been sought in this form, and I will propose to allow them.

 

14. On the other hand there are a considerable number of the interrogatories which in my view exceed the permissible scope for interrogatories. To take for an example, in the first series of interrogatories it is asked whether a specified telephone number was the telephone number of a specified person, namely Maureen Devine, and in the second part it is asked is it not the case that Maureen Devine was the mother of Caroline Devine. These are clearly proper interrogatories. However, interrogatories 1.3 and 1.4 go on to enquire whether, if the telephone number was not the number of Maureen Devine, then whose telephone number was it, and if she was not the mother of Caroline Devine, then what was her relationship with various interested parties. In my view these are queries which, if the defendant is incorrect in its suppositions in the first two queries, are really purely fishing queries. The information which the defendant wants to elicit is that this was Maureen Devine’s telephone number and that she was the mother of Caroline Devine, but the case made on behalf of the defendant is that it might be very difficult or costly to prove this. However, the generalised nature of the third and fourth queries go far beyond savings of cost or doing justice between the parties, and in my view are inadmissible.

 

15. I will therefore allow the following interrogatories, where relevant amended as I have indicated:-

 

1.1, 1.2, 2.1, 2.2, 2.3, 3.1, 3.2, 3.3, 4.1, 4.2, 4.3, 5.1, 5.2, 5.5, 5.6, 5.7, 6.1, 6.2, 6.3, 6.6, 6.7, 6.9, 6.10, 7.1, 7.2, 8.1, 8.2, 9.1, 9.2, 9.5, 9.6, 9.9, 9.10, 10.1, 10.2, 11.1, 11.2, 12.1, 12.2, 13.1, 13.2, 14.1, 14.2, 14.5, 14.6, 15.1, 15.2, 15.5, 15.6, 16.1, 16.2, 17.1, 17.2, 18.1, 18.2, 19.1, 19.2, 20.1, 20.2, 21.1, 22.1, 23.1, 24.1, 24.2, 24.3, 24.4, 25.1, 25.2, 25.3, 26.1, 26.2, 27.1, 27.2, 28.1, 28.2

and I will refuse leave to deliver the remaining interrogatories .

 

Fusco v. O’Dea

[1994] 2 I R 101

S.C.

 

 

Finlay C.J.

7th July 1994

 

I have read the judgment about to be delivered by Egan J. and I agree with it.

 

Egan J.

This is an appeal from an order of Lynch J. made by him in the course of proceedings under Part III of the Extradition Act, 1965. Applications had been made to him, first, that the government of Great Britain and Northern Ireland be joined as a defendant in the proceedings under the Rules of the Superior Courts, 1986, and secondly, that Her Majesty’s Secretary of State for Northern Ireland make discovery of certain documents and answer certain interrogatories. These applications were refused by the learned judge.

The facts of the case are set out in the judgment and disclose that the appellant was arrested in Northern Ireland on the 2nd May, 1980, and charged along with other persons with various offences, including murder. He was convicted on the 12th June, 1981, by the Northern Ireland court of a number of the offences, including murder, for which he was sentenced to imprisonment for life. Prior to the imposition of the said sentence, however, he escaped from prison in Belfast and came to this State.

On the 18th January, 1982, the plaintiff was arrested in this State. He was charged under the Criminal Law (Jurisdiction) Act, 1976, with escaping from lawful custody in Belfast, and was convicted in this State on that charge on the 25th February, 1982, and sentenced to ten years imprisonment. He was due for release from Portlaoise on the 16th December, 1991, but on the 11th December, 1991, he was brought before the District Court pursuant to Part III of the Extradition Act, 1965, on foot of warrants issued by the Northern Ireland authorities and backed by the defendant in this case. On the 8th January, 1992, an order for his rendition to Northern Ireland was made by the District Court. He then brought proceedings for his release pursuant to s. 50 of the Act of 1965.

When these applications were sought, counsel for the plaintiff indicated that his only reason for wanting to join the government of the United Kingdom as a defendant was in order to get discovery from it, and that he would be content instead to get an order for third party discovery pursuant to O. 31, r. 29 of the Rules of the Superior Courts, 1986. The application for interrogatories was abandoned.

 

An order for discovery was actually made in the High Court on the 4th December, 1992, but it applied to the defendant herein and the Director of Public Prosecutions. It was responded to and this Court even went a distance in involving itself with the adequacy of the responses. Strictly, however, the Court is not concerned with this aspect of the case and will not concern itself further with it as the appeal is in relation to the availability of third party discovery.

The question of whether or not third party discovery lies against a foreign sovereign government should be addressed in two stages; (1) whether discovery can be obtained against any third party outside the jurisdiction, and (2) whether special considerations apply with respect to a sovereign government.

Third party discovery generally

The wording of O. 31, r. 29 is silent as to the issue of its possible application to third parties outside the jurisdiction. However, although the rule is drafted widely – the court may order any person having in his possession custody or power relevant documents to discover them – it is arguable that it should be construed narrowly. Costello J. adopted a restrictive approach when interpreting the rule in  Allied Irish Banks plc v. Ernst & Whinney  [1993] 1 I.R. 375 at page 381:

“The onus is on the applicant to satisfy the court that such documents are in the third party’s power or possession. If it does not do so, the court has no jurisdiction to make an order.”

Furthermore, such an order is in the court’s discretion and is not available as of right. It was submitted that O. 31, r. 29 must be read in the light of O. 11, which provides for the service of a summons outside the jurisdiction. It has been held that the categories of cases specified thereunder in which an order for service out of the jurisdiction may be obtained are exhaustive; a court may only exercise its discretion when the requirements of the order have been met. See  O’Connor v. Star Newspaper Co.  (1891) 30 L.R. Ir. 1 at page 4. See also  Shipsey v. British and South American Steam Navigation Co.  [1936] I.R. 65 at page 83.

It would seem, therefore, that parties outside the jurisdiction are only to be made amenable to the Irish courts’ jurisdiction in specified circumstances. To grant an order of discovery against such a third party outside the jurisdiction would circumvent to a certain extent this principle by subjecting such a party to the jurisdiction of the Irish courts in circumstances other than those provided for in Order 11. This approach

is endorsed in the English context by Matthews & Malek, “Discovery”(1992), where they suggest, at para. 3.53, that the normal territorial limitations will apply to third party discovery.

Discovery against a foreign sovereign government

The situation as regards discovery against a foreign sovereign government is complicated by the principle of state immunity. This principle states that sovereign states are generally immune from the jurisdiction of the courts of other states:

“. . . the courts of a country will not implead a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages.” [Per Lord Atkin in  Compania Naviera Vascongado v. S.S. Cristina  [1938] A.C. 485 at 490.]

Thus, it would seem that it would not be possible to join the British government as a party to the proceedings, as appears to have been originally contemplated by the plaintiffs. The question of whether an order of discovery may lie is more difficult. It is well established that in circumstances where a foreign state has submitted to the jurisdiction of the courts by, for example, initiating proceedings with itself as plaintiff, it must be prepared to make discovery. However, I am of opinion that discovery will not lie otherwise. To allow discovery would seem to undermine the principle of immunity, based as it is on the perfect equality and absolute independence of sovereign states. To order discovery would be to subject a foreign government to the jurisdiction of the Irish courts. The situation in Australia, prior to the enactment of its Foreign States Immunities Act, 1985, was that in proceedings against a foreign state a claim for discovery could not be asserted unless immunity had been waived:  Kubacz v. Shaw  [1984] W.A.R. 156.

Reference is also made to the decision in  Reg. v. Governor of Brixton Prison, Ex p. Osman  [1991] 1 W.L.R. 281, which was cited in argument. The facts of that case resemble the facts of the current case, in that a potential extraditee sought to discover copies of documentation ex-changed between the U.K. authorities and the requesting authority, viz.Hong Kong. This case appears to indicate that the appropriate action for the plaintiff is to discover any documentation through the extraditing authorities. The decision does not shed any light on the issue of possible state immunity as the proceedings were concerned only with discovery

of documentation through the U.K. authorities and no order appears to have been sought against the Hong Kong authorities.

Conclusion

An order for discovery does not lie against the U.K. government. Order 31, r. 29 is an unusual provision in that it requires a stranger to an action to make discovery. Accordingly, it should be construed strictly and in the absence of express provision should not be read as conferring an extra-territorial jurisdiction on the Irish courts, in addition to that conferred by Order 11. This reasoning applies a fortiori to the position of a sovereign government with the attendant international law complications. The appeal, therefore, must be disallowed.

 

Blayney J.

I agree.