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.

 

 

Money Markets International Stock Brokers Ltd. v. Fanning

[2000] IEHC 15; [2000] 3 IR 215 [2001] 1 ILRM 1 (11th February, 2000)THE PLEADINGS

3. The Plaintiff’s case is brought by the Official Liquidator pursuant to leave granted by the Court. At all material times the Plaintiff (“MMI”) carried on the business of stockbroker and the Defendants were executive directors thereof. The Plaintiff claims that the Defendants defrauded MMI out of large sums of money by transferring same out of the client bank accounts of MMI, re-lodging these sums giving credit to parties not entitled thereto and wrongly debiting a further party (Cater Allen) and recording false transactions in the books of MMI. The wrongful beneficiaries of such transactions were the directors or persons connected with them. In a further allegation it is said that a sum of £200,000 Sterling was transferred telegraphically from an MMI client bank account to a Hambros private bank account for the benefit of an unauthorised party and that the same third party, “Cater Allen” was wrongly debited with the said amount. The third major allegation is that almost £500,000 Sterling was wrongly transferred from the MMI account with Bank of Ireland, Kilburn, London for the benefit of the third Defendant.

 

4. It is alleged, further, that the books of MMI were falsely manipulated to disguise and cover up the foregoing transactions.

 

5. A large number of interrogatories have been delivered by the Plaintiff relating, in the main, to the detailed, step by step, tracing of the “paper trail” which is apparent from a perusal of the books of the company now available to the Liquidator. For example the first Defendant is asked a number of detailed questions in relation to each of the relevant cheques including whether it was drawn on the relevant account, whether it was made payable to MMI, whether the cheque stub recorded the payee as Cater Allen, whether it was signed by the seventh Defendant, whether it was lodged back into a specified account on a specified date, and whether the Cater Allen client ledger account recorded the payment to that party.

 

6. The foregoing is a sample only; it is fair to say, however, that the vast bulk of interrogatories relate to particularised detail of the kind indicated in the foregoing sample.

 

7. The defences of all seven Defendants comprise comprehensive denials. In addition the second, third and seventh Defendants say they relied upon the first Defendant’s representations that he had authority to transfer the monies and to arrange the various transactions. These Defendants say that if the others were guilty of fraud or breach of fiduciary duty or trust or statutory duty, they are not liable for the actions of the others. The fifth and sixth Defendants do not go quite so far, but they do say that insofar as they drew cheques, they did so in the belief that same was for honest and bona fide purposes and they were not aware of the manner in which these transactions were in fact treated or recorded in the books of MMI.

 

8. As will be seen, the pleadings establish deep and comprehensive issues between the Plaintiff and all the Defendants but also as between several of the Defendants inter se.

 

 

SUBMISSIONS

9. Mr. Gleeson B.L. on behalf of the Plaintiff submits that:-

 

 

1. The Defendants as ex directors of the Plaintiff owe a particular duty to it and should be compelled to answer interrogatories relating to the primary books of the company which were prepared and maintained under their control and pursuant to their statutory duty.

 

2. They may not avoid this obligation on the plea that they were not personally involved in the specific transactions in question because, as directors, they have an obligation to get such information as they can from other servants of the company who may have personally conducted the relevant transactions. He relies in this connection on the observations of Walsh J. in J. and L.S. Goodbody Limited -v- The Clyde Shipping Company Limited (Supreme Court unreported, 9th May, 1967, p.5 following) to the effect that:-

 

“Prima facie the secretary is the person to whom they (the interrogatories) should be delivered and in the absence of any Order to the contrary it is to be assumed that that was what was intended in the present case. It is important to bear in mind, however, that it is not the secretary who is being interrogated but the company. The secretary is not answering for himself but for the company and in doing so he must get such information as he can from the other servants of the company who have personally conducted the transaction in question and have personal knowledge of the facts sought. The secretary’s function is to give the answer of the company. When the secretary answers on the basis of information obtained from other servants of the company he is answering according to information. On behalf of the company he is bound to answer according to information and belief acquired or formed from personal knowledge or from information obtained from others who are servants or agents of the company and have acquired the information in that capacity.”

 

10. This view was echoed by Laffoy J. in McCole -v- The Blood Transfusion Service Board and Others (unreported: 11th June, 1996 at p.12) although she was not referred to Clyde Shipping , where she said :-

 

 

“The duty of the first named Defendant is to make reasonable enquiries of present and past employees and agents. Having done so, it can qualify its answer in such a way as to obviate any adverse comment during cross examination at the trial”.

 

11. The interrogatories could not be described as “fishing interrogatories”, in the circumstances that the details have been precisely pleaded, the Plaintiff knows precisely where it is going and what facts it will rely on, and seeks admissions of facts so identified (as distinct from evidence, or certainly evidence of how the Defendants intend to conduct their defences).

 

 

3. Under the rules where a Plaintiff pleads fraud it is entitled without leave of the Court to deliver interrogatories and there is nothing in the authorities (which do not explicitly deal with such a case) to suggest that the Defendants may refuse to answer in the absence of establishing prejudice: in the present case there are no affidavits in response to the grounding affidavit of the Liquidator.

 

4. Having regard to the test set down by the Supreme Court in Bula Limited -v- Tara Mines Limited [1995:1:ILRM:401 following; per Lynch J. at page 405] he submits that costs will be saved and injustice avoided if these interrogatories are answered in that the Plaintiff will not have to call the Defendants to prove these transactions thereby depriving itself of the opportunity to cross-examine them.

 

12. In addition to the foregoing, considerable discussion arose concerning the distinction between interrogatories which relate to the facts in dispute on the one hand, and on the other, interrogatories which relate to evidence of the facts in dispute where the authorities allow the former but not the latter: a difficult distinction explicitly acknowledged as such by Costello J. (as he then was) in Mercantile Credit Company of Ireland -v- Heelan [1994:2:IR:105 at p.112].

 

13. Mr. Sanfey B.L. submitted on behalf of the first Defendant:-

 

1. Whilst the rules entitle a Plaintiff alleging fraud to deliver interrogatories without leave of the Court, there is nothing in the rules to suggest that a different test applies as to whether or not they are permissible. There is no presumption in favour of interrogatories in a fraud case. Order 31 Rule 6 entitles his client in this case, as in any other, to object to answering on the grounds therein set out.

 

2. His clients, as all the Defendants, have sworn in their answers, that they have had no personal involvement in or knowledge of the specific transactions concerned. The dicta of Walsh and Laffoy JJ. in Clyde Shipping and McCole respectively do not apply in the present case because in those cases the companies were being interrogated and the companies were defendants. It was therefore appropriate that the secretary or a director in delivering a reply of the company would make enquiries. In the present case the Defendants are being sued as individuals and therefore have no more obligation than any other individual accused of fraud .

 

3. It is apparent that the Liquidator can prove the various matters in question by contact with the appropriate witness. In his affidavit grounding an application for a Mareva Injunction, references are made to contact with Cater Allen and, indeed, to the latter’s Irish Solicitors. There was in addition a financial controller and compliance officer in the Plaintiff company who is not a Defendant and who could give the evidence. There is no question, therefore, of the Liquidator

“… not having (the) knowledge (n)or the ability to prove the facts either at all or without undue difficulty” ,

to use the test established by Lynch J. in the Bula case (page 405).

 

4. The Liquidator has not established a necessity or special exigency which would justify compelling the Defendants to answer the interrogatories. The necessity test is apparent from the cases, for example, per Costello J. (as he then was) in the Mercantile Credit Company case (page 110) where he says:-

 

“ Leave to deliver interrogatories will only be given where they are necessary for ‘disposing fairly’ of the cause or matter, or for saving costs. In considering the fair disposal of an action commenced by Plenary Summons the Court must bear in mind that such actions are in principle to be heard on oral evidence (O.1., r.2) and that the use of evidence on affidavit given in reply to interrogatories is an exception which must be justified by some special exigency in the case, which, in the interest of doing justice, requires the exception to be allowed”.

 

5. It would be unfair to deprive the first Defendant of an opportunity to cross-examine the other Defendants which might arise if the first Defendant is required to answer these interrogatories thus relieving the Plaintiff of the necessity of calling one or other of his co-Defendants.

 

6. It is an abuse by the plaintiff of the procedures of the Court, in the circumstances, to seek to compel answers and thereby avoid the usual onus of proof.

 

7. In regard to the new interrogatories (which query whether authorisation was sought or given from or by Cater Allen and whether the relevant sums were paid to Cater Allen), these are clearly seeking evidence, as distinct from facts, and are accordingly not compellable.

 

8. The Plaintiff relies on the wrong test: in the Bula case, the true test per Lynch J. was not that interrogatories would be permitted where it was more convenient for the party interrogating but rather they would be permitted only where such party did not have the knowledge or the ability to prove the facts either at all or without undue difficulty. In the present case it is clear that these facts could be proven without undue difficulty by the Plaintiff or, at least, there is no evidence to the contrary.

 

14. Mr. Marray B.L. for the fourth Defendant adopted Mr. Sanfey’s submissions and further submitted:-

 

 

1. If the facts (or “evidence”) sought to be established by way of interrogatories go the core of the case made by the Plaintiff against the Defendant then this constitutes evidence which should not be established on affidavit. In the present case the Plaintiff is saying that the very entries in the books itself constituted the fraud or part thereof and accordingly interrogatories dealing with these transactions are either futile (since they are self-evident) or so central to the allegation of fraud that they should be disallowed.

 

2. The interrogatories are indiscriminate in that they or a large number of them are common to all Defendants and should be dismissed as onerous.

 

3. In relation to the new interrogatories, leave should be refused as these amount to the Plaintiff seeking to establish evidence of fraud on affidavit.

 

4. If these interrogatories are allowed, there will be little or no need for a trial on oral evidence, and this would be clearly wrong.

 

15. Mr. Ó hOisin B.L., for the second, third and seventh Defendants who were concerned only with the new interrogatories submitted that:-

 

 

1. These interrogatories seeking information relate to evidence which is clearly and preferably available through a third party, namely, Cater Allen. No case is made that this evidence would not be available to the Plaintiff.

 

2. Furthermore, these interrogatories are fishing for evidence of the Defendants’ defence, and should therefore be disallowed.

 

16. Mr. McCullough B.L. for the fifth and sixth named Defendants (who were also concerned only with the additional interrogatories) submitted as follows:-

 

 

1. The issue of Cater Allen’s authorisation is central to the allegation of fraud, and should therefore be dealt with only by way of oval evidence.

 

2. The Plaintiff has failed to show a special exigency or necessity that these interrogatories must be answered. For this he relied on Woodfab Limited -v- Coillte Teroanta and Another (unreported: Shanley J.: 19th December, 1997) (at p. 13) and also Mercantile Credit Company Limited -v- Heelan (1994:2:IR:105) per Costello J. (at p. 110).

 

3. Interrogatories should not be directed where the evidence is available to the Plaintiff from other sources. For this he relied on Bula Ltd (In Receivership) and Others -v- Tara Mines Limited and Others [1995:1:ILRM:401 per Lynch J. at page 405].

 

4. These interrogatories seek to procure evidence of his clients’ conduct which is central to the allegation of fraud and therefore touches on the evidence which the Defendant would produce and is not therefore allowable on the authorities.

 

5. The overriding principle is that interrogatories should not be directed where it would be unfair to the party interrogated. Here a Court Order would tend to relieve the Plaintiff of the requirement of calling other Defendants, including the seventh Defendant: indeed the Liquidator has sworn that in the absence of interrogatories he may have to call such Defendant. The Order would to that extent facilitate a situation whereby the fifth and sixth Defendants could be deprived of their opportunity to cross-examine such other Defendant. That would be unfair, particularly where it is clear that the evidence is, in principle, available to the Plaintiff from other witnesses.

 

6. The Liquidator is not suing as Liquidator of the Plaintiff company but rather as trustee on behalf of Cater Allen who have not as yet made a claim for loss against the Plaintiff company: the Liquidator should not be exempted from the ordinary obligation to establish his case through his own witnesses.

 

17. Miss Hyland B.L., in reply on behalf of the Plaintiff submitted:-

 

 

1. In a fraud case which may involve a degree of moral turpitude, it is in the public interest that no restriction be placed on the Court’s capacity to ascertain the facts so as to ensure that a wrongdoer does not escape the consequences of his actions. For this proposition she relied on the observations of Costello J. (as he then was) in Murphy -v- Kirwan [1994:1:ILRM:293] as cited per Finlay C.J. (page 297): this is an additional factor which should be taken into account on the present application.

 

2. Nash -v- Layton [1911:2 CH:71] establishes the principle that interrogatories are permissible in relation to facts in dispute and are excluded only where they relate to evidence of collateral facts. Although the judges in that case differed as to its application, the principle was clear. The difficulty of applying the distinction between facts and evidence of facts was acknowledged by Costello J. (as he then was) in Mercantile Credit Company of Ireland Limited. In the present case the interrogatories are allowable as they relate to facts in dispute or facts which the Plaintiff asserts and which are in issue as distinct from evidence which does not form part of those facts.

 

3. A special exigency is established in the affidavit of the Liquidator who says that if the Defendants are not compelled to answer the outstanding interrogatories the Plaintiff “may be compelled to subpoena the motioned Defendants in order to elicit the admissions and/or information presently sought from them by virtue of the interrogatories. However, if the Plaintiff is forced to subpoena the Defendants, it will not be permitted to cross-examine them on the evidence tendered by them. This will put the Plaintiff in a disadvantageous position and may prevent the matter from being disposed of fairly .” He further claims that he would be prejudiced in that neither himself nor his servants or agents are in a position to prove any of the documents given that they came into being before he was appointed Official Liquidator. Miss Hyland also submitted that in the absence of interrogatories she may be compelled to examine or cross-examine all seven Defendants whereby costs would be increased which could be saved if the interrogatories were directed.

 

4. In the context of the test in Bula Ltd (per Lynch J.) which is:

“As I understand the law the basic purpose of interrogatories is to avoid injustice where only one party has knowledge and the ability conveniently to prove facts which are important to be established in aid of the opposing party’s case, such opposing party not having such knowledge nor the ability to prove the facts either at all or without undue difficulty” ,

she asserted that the evidence on behalf of the Plaintiff states that the Plaintiff “…may be compelled to subpoena the motioned Defendants…” if the interrogatories are not directed and refers to the fact that the exhibits to the affidavit indicate that Cater Allen is a company domiciled outside the jurisdiction, albeit that correspondence exhibited to the liquidator’s affidavit grounding an earlier application for a Mareva Injunction indicates that this party has instructed Solicitors within the jurisdiction.

 

5. She submitted, finally, that the Defendants cannot expect the Plaintiff necessarily to call any one of the Defendants so that their complaint that they could be deprived of an opportunity to cross-examine such Defendants is not firmly grounded.

 

18. Because I permitted Miss Hyland to refer to two new cases, I offered a further opportunity to Counsel for the Defendants to comment on these cases.

 

19. Mr Sanfy B.L. pointed out that the “public interest” principle in the context of fraud cases, (being an obiter dictum of Costello J (as he then was) albeit approved by Finlay C.J. in Murphy v Kirwan, ) was not referred to by him in Mercantile Credit Company Limited which had to do with this issue directly. Indeed this case shows that no special rules apply when interrogatories in a fraud case are contested. Mr Marray B.L. emphasised that if wide-ranging interrogatories are permitted there would be no need for a trial at all, whilst Mr McCullogh B.L submitted that the effect of directing interrogatories in a fraud case would be to exclude evidence by confining it.

 

20. In addition, I offered the Defendants’ representatives an opportunity to comment on the observations of Walsh J in J & L S Goodbody Limited v the Clyde Shipping Company Limited (Supreme Court: unreported: 9th May 1967) (at p. 3) which appeared, to some extent, to qualify the requirement in the rules that interrogatories shall be given only where they are considered necessary, the relevant passage being as follows:-

 

 

“While Order 31 Rule (2) of the Rules of the Superior Courts provide 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 question in issue but it is sufficient if the interrogatories 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. ….

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 because 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.”

 

21. In response it was submitted for the Defendants that Costello J. (as he then was) and Shanley J. in Mercantile Credit Company Limited and Woodfab Limited respectively reasserted the requirement that a special exigency must be shown by the party seeking the interrogatories.

 

 

ISSUES

22. Four principal issues appear to me to emerge from these submissions as follows:-

 

1. Can the Defendants in this case be compelled to make enquiries for the purpose of answering interrogatories where they have deposed to lack of personal knowledge?;
2. Is there a need for the Plaintiff to establish a special exigency or necessity where fraud is alleged and, if so, has the liquidator established such an exigency?;
3. Would it be unjust, in principle, to require the Defendant to reply?; and
4. What is the correct test for determining the subject-matter of interrogatories and have the present interrogatories or any of them satisfied this test?

 

1. CAN THE DEFENDANTS BE COMPELLED TO MAKE ENQUIRIES?

In the Clyde Shipping Company case Walsh J (Ó Dálaigh C.J. concurring) said (page 6):-

 

“The secretary is not answering for himself but for the company and in doing so he must get such information as he can from the other servants of the company who have personally conducted the transaction in question and have personal knowledge of the facts sought. The secretary’s function is to give the answer of the company. When the secretary answers on the basis of information obtained from other servants of the company he is answering according to information. On behalf of the company he is bound to answer according to information and belief acquired or formed from personal knowledge or from information obtained from others who are servants or agents of the company and have acquired the information in that capacity.”

 

23. The Defendants distinguished the present case from Clyde Shipping by saying that the Defendant in that case was a company whereas in the present case they are individuals and are not giving the answer of the company but only their own answers. They should not, therefore, be compelled to give answers which are not within their personal knowledge.

 

Further on in Clyde Shipping , however, Walsh J continued:-

 

“In Douglas v Morning Post Limited (39:Times Law Reports: 402) the Plaintiff, in reply to an interrogatory administered by the Defendants in a libel action (“are not all or some and which of the statements of fact contained in such extracts untrue?”), said that:-

“In my firm belief none of the statements of fact contained in the said extract is untrue.” The defence in the case was one of justification. It was held in the Court of Appeal in England that this answer was not sufficient. Lord Justice Bankes expressed the view that if a deponent affirmed only as to one of the three elements required without affirming as to all three (knowledge, information and belief) he could not complain that his answer was regarded with suspicion as departing from the ordinary form. “If there was no knowledge or information and only belief” he thought that “the person answering was in great peril.” Lord Justice Scrutton said that “if a party had means of knowledge he must use them to the best of his knowledge, information and belief”. In his view it was sufficient to say in reply to an interrogatory “yes” or “no” but if the person departed from this and put in one of the above elements of knowledge, information and belief, he ought to put in all. Merely to affirm that a party had belief was not sufficient.

 

In my view any party making answer to an interrogatory, whether he be an individual or a body corporate speaking through one of its officers, must not answer in such a way as to leave the other party in doubt as to whether or not the party interrogated has availed himself of the information properly at his disposal.”

 

24. I would make two observations with regard to the foregoing citation:

 

 

(a) It was the Plaintiff (an individual) in the Morning Post Limited case of whom Lord Justice Scrutton said “if a party has had the means of knowledge he must use them to the best of his knowledge information and belief” : and

(b) Walsh J makes no distinction between an individual and a body corporate (speaking through one of its officers) in this context where he condemns both if answering in such a way as to leave the other party in doubt as to whether or not such individual or body has availed himself of the information properly at his disposal.

25. So far as this authority goes, it seems to me, that if information can be said to be properly at the disposal of the Defendants then, notwithstanding that they are being interrogated as individuals rather than as officers of a company, they may not avoid giving answers to interrogatories merely on the grounds that the subject matter thereof is not within their personal knowledge.

 

26. But can this knowledge be said to be “properly at the disposal” of the Defendants?

 

27. In dealing with a submission in McCole, to the effect that it is inappropriate to seek interrogatories about matters which are within the knowledge of a third party, Laffoy J referred to a passage from Colman J. in Det Danske v KDM (1994:2:Lloyd’s Reports 534) which included the following

 

 

“The position as contemplated by Welsbach Incandescent Gas Lighting Company (1900:2:Ch.:1) is that the person other than the party interrogated whose knowledge may, for the purpose of interrogatories, be treated as the knowledge of the party interrogated must be a person for whose knowledge that party is responsible, i.e. must be a person who holds that relationship to the party interrogated which would give rise to responsibility on the part of the interrogated party for the acts and knowledge and state of mind of the third party.”

 

28. The Defendants are sued as erstwhile directors of the Plaintiff. In that capacity they had responsibility for ensuring that the books of the company were correctly prepared and maintained. Many of the interrogatories exhibited seek six specific answers which are, prima facie , apparent from the face of the books and other documents of the company. Furnishing answers to these would present, prima facie , no great burden. Insofar as the Defendants may be concerned as to whether the information so appearing is or is not accurate then it seems to me that at the relevant time (that is when they were directors of the Plaintiff) they were in a relationship to the individual who did have the relevant personal knowledge as to make them responsible for the acts and knowledge of such individual.

 

29. In my view it is artificial for the Defendants now to say that they have no personal knowledge of the information of these documents in respect of which (at the time they were brought into existence) they were, as directors, in a position of responsibility. That being the case I consider that the Defendants have available to them information “properly at (their) disposal” , to use the phrase employed by Walsh J (page 7) in Clyde Shipping and as such may not, on the sole ground of lack of personal knowledge, decline to respond.

 

30. In this context I note, further, that one of the conclusions of Costello J.

 

(as he then was) in Mercantile Credit Company of Ireland Limited (page 115) was

 

“Interrogatories which seek admissions as to the existence of documents and signatures to documents identified in discovery will normally be allowed, unless there are special reasons why in the interests of justice an Order should not be made.”

 

31. I would conclude, therefore, that insofar as the interrogatories exhibited relate to admissions sought as to the existence of documents and signatures to documents which are identified and which came into existence at a time when the Defendants were directors of the Plaintiff company answers cannot be declined by the Defendants solely on the grounds of lack of personal knowledge.

 

 

2(a). Must the Plaintiff in a fraud case establish a special exigency for compelling replies to interrogatories and if so has the liquidator established such an exigency in the present case?

32. It is clear that the rules and the principal High Court authorities in this country ( Mercantile Credit Company of Ireland Limited , Bula Limited (In Receivership), McCole, and Woodfab Limited ), establish or acknowledge that such an exigency or necessity is a necessary prerequisite in all cases where interrogatories are contested. In Clyde Shipping , however, Walsh J (Ó Dálaigh C.J. concurring) appeared, at least, largely to subordinate this requirement to the principle that one of the purposes of interrogatories is to sustain the Plaintiff’s case as well as to destroy the Defendant’s case when he said:-

 

 

“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 Plaintiff’s case as well as to destroy the Defendant’s 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.”

 

33. This suggests that so far as the Supreme Court is concerned, once it is established that the purpose of an interrogatory is either to sustain the Plaintiff’s case or to destroy the Defendant’s case then it may be regarded as necessary for fairly disposing of the cause or matter or for saving costs within the relevant rule. In this context I note that Shanley J. in Woodfab Limited in referring to a submission to the effect that “necessity was a stringent test,” , which relied on Hall v. Sevalco Limited (Times Law Report: 27th March: 1996), concluded, as follows ( pp. 12/13):-

 

 

“As I have indicated, the various decisions to which I have been referred have gone to some length to emphasise that giving leave to deliver interrogatories must be regarded as an exception in any case to be heard on oral evidence and must be justified by the party seeking to deliver interrogatories. That the parties seeking leave to deliver interrogatories must establish that they are necessary can be seen from Order 31 Rule 2 of the Rules of the Superior Courts. However it does appear that once the party seeking to deliver interrogatories satisfies the Court that such delivery would serve a clear litigious purpose by saving costs or promoting the fair and efficient conduct of the action in question, then the Court should be prepared to allow the delivery of the interrogatories unless it is satisfied that the delivery and answering of the interrogatories would work an injustice upon the party interrogated. What I have just said, is, I believe, simply another way of restating what is said in Order 31 Rule 2 of the Rules, namely that leave shall be given to serve interrogatories where it is considered ‘necessary either for disposing fairly of the cause or matter or for saving costs’.”

 

Clyde Shipping was not cited to Shanley J. but, notwithstanding, he arrived at a conclusion which, as I have indicated, appears to be similar to that reached by the Supreme Court in the earlier case.

34. I would hold, therefore, that the necessity referred to in the rules can be satisfied if the party exhibiting interrogatories can establish that answers to them would save costs or promote the fair and efficient conduct of the action in question. The directing of replies must, however, at all times be subject to the overriding principle that compelling such replies would not work injustice upon the party interrogated. I would add in this context that I have read the short judgment of Ó Dálaigh C.J. in Keating v. Healy and, so far as relevant, it supports, without significant addition, the citation to which it is linked by Walsh J. in Clyde Shipping .

 

 

(b) Has the Plaintiff established a sufficient “exigency”?

35. At paragraph fifteen of his grounding affidavit the liquidator says:-

 

 

“I say that the use of interrogatories in this case will save costs and will shorten the trial of the action for the reasons set out below.”

 

36. The interrogatories in the main relate to documentation of which there is a significant volume and

 

 

“… failure to reply to the interrogatories will result in a significant amount of Court time being used for this ( probative) purpose and a corresponding increase in cost.”

 

37. The Liquidator had averred that neither he, his servants or agents are in position to prove any of the documents and in the absence of replies to interrogatories, it would be difficult for him to prove such documents “ … by any other means apart from subpoenaing the motioned to Defendants” which would prejudice him my precluding his cross-examining them.

 

38. Subject to the question of injustice, I consider that the Plaintiff has discharged the requirement of showing that it is necessary that these interrogatories be answered both for disposing fairly of the cause or matter or for saving costs, given that, as I interpret the relevant authorities, this requirement includes the purpose of promoting the fair and efficient conduct of the action in question.

 

 

3. Would it be unjust, in principle, to require the Defendants to reply?
4. The Defendants say that it would be unjust because, given that the Liquidator has sworn that he may have to subpoena the Defendants to prove the documents if interrogatories are not directed, the making of a compelling Order would reduce, to that extent, the likelihood that the Plaintiff would call those other Defendants (and in particular the seventh Defendant) thereby, they say, depriving them of the chance (or reducing it) of cross-examining that Defendant. This submission arises in the context that the seventh Defendant, amongst others, has claimed that if he did any of the actions complained of he did so on the assurance of, in particular, the first Defendant that this was authorised and in order.

 

40. Furthermore, say the Defendants, it is clear that these documents could be proved by other means and other witnesses so that the Plaintiff would not be deprived of the capacity to prove these facts and even if this were more cumbersome, expensive and time-consuming, these considerations must give way to the overriding principle that no injustice be done to the party compelled to reply.

 

41. On the other side of this argument, it is submitted that the Liquidator on behalf of the Plaintiff will be similarly disadvantaged if interrogatories are not directed and, secondly, that no Defendant can have an expectation that the Plaintiff will call any other Defendant, particularly where, in the case of the seventh Defendant, full replies to interrogatories have already been delivered by him.

 

42. The submission that an Order would impair one Defendant’s opportunity to cross-examine another arises, in my view, from the fortuitous circumstance that the Plaintiff has joined several Defendants in a single proceeding. Evidence against one is not evidence against the other, there being no claim for conspiracy. The joinder by the Plaintiff of several co-Defendants may confer on each co-Defendant a potential advantage in terms of possible cross-examination but one which does not arise from the intrinsic relationship between the Plaintiff and each Defendant per se . No Defendant can expect to control the conduct of its case by either the Plaintiff or any co-Defendant. None of the first six Defendants, for example, could have prevented the seventh Defendant furnishing full replies to the Plaintiff’s interrogatories. The disadvantage in relation to cross-examination asserted, in this context, by the Defendants does not appear to me, accordingly, to carry quite the same weight as the corresponding disadvantage asserted by the Plaintiff.

 

43. In this context I note that any admissions in relation to documents which are sought in the bulk of the interrogatories, relate largely to matters of formal and technical proof. No inference, adverse to the Defendants in the context of an allegation of fraud, can arise from the merest formal averment that such-and-such a cheque was drawn on such-and-such an account, was made out to such-and-such a party on such-and-such a date and was treated in a particular way in the books of the company and so on. The nefarious purpose or intent alleged to lie behind all this multiplicity of paperwork is in no way established by, and in no way arises by inference from, the bulk of the interrogatories delivered. The allegation that all of this was done to defraud a third party or the creditors of the company is in no way established by the bulk of the interrogatories directed to the specifics of the documents themselves.

 

44. I disagree with the submission that these matters should not be the subject of interrogatories because they form the essence and core of the case against the Defendants. In my view they do no such thing. Wherever else it lies the gist of fraud does not reside in signing, dating or lodging cheques or transferring or handling money or making entries in ledgers, all of which and analogous activities are the subject-matter of the bulk of the interrogatories in this case.

 

45. I am not satisfied that directing the Defendants to reply to the bulk of the interrogatories delivered would constitute injustice.

 

 

4. What is the appropriate test and do the interrogatories or any of them satisfy it?
5. Costello J. (as he then was) acknowledged in Mercantile Credit Company of Ireland Limited , that the application of a distinction between interrogatories which relate to facts in dispute (which are admissible) and those which relate to evidence of facts in dispute (which are not) was a difficulty which was illustrated by Nash v. Layton (1911: 2: CH: 71). At issue in that case was whether the Plaintiff was a money lender who was not registered under the Money Lenders Act, 1900 where he, the Plaintiff, had brought proceedings to enforce a charge given by the Defendant to secure a loan made by him to the Defendant. Interrogatories were exhibited as to what other loans the Plaintiff had made before and apart from the loan in question and the terms of same. The trial Judge held that these were not allowable and on appeal two (Cozens-Hardy M.R. and Buckley L.J.) held that they were whereas the third (Fletcher Moulton L.J.) held they were not . The trial Judge and the minority appeal Judge took the view that these interrogatories related to evidence of facts in dispute (the “fact” was whether the Plaintiff was an unregistered money lender but this evidence relating to other transactions was merely evidence relating to such a “fact”) whilst the majority in the Court of Appeal held that the interrogatories related to facts which were in dispute and were therefore allowable.

 

Marriott v. Chamberlain (17: QBD: 154 (1886)) was referred to by all appeal Judges in Nash v. Layton , as indeed it was by Costello J. in Mercantile Credit Company Limited . Lord Esher M.R. said in Marriott:-

 

“The law with regard to interrogatories is now very sweeping. It is not permissible to ask the names of persons merely as being the witnesses whom the other party is going to call, their names not forming any substantial part of the material facts; and I think we may go so far as to say that it is not permissible to ask what is mere evidence of the facts in dispute, but forms no part of the facts themselves. But with these exceptions it seems to me that pretty nearly anything that is material may now be asked. The right to interrogate is not confined to the facts directly in issue, but extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue.”

 

47. The distinction between “ … what is mere evidence of the facts in dispute…” on the one hand, and on the other “ … the facts themselves…” , is a difficult one because the facts themselves become evidence once replies are furnished to interrogatories. The line between what is and is not permissible is even more difficult to lay down in light of the right to interrogate not only in relation to the facts directly in issue but in relation to any facts “ the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue” .

 

48. Clearly one is not entitled to “fish”. One is not entitled to ask one’s opponents the name of his witnesses (unless these are part of the material facts) nor the evidence or line of evidence which he intends to follow. Equally, however, one may interrogate to obtain information about the issues that arise in the action or to obtain admissions from the party interrogated and these admissions may relate to facts in issue (for example details relating to cheques in the present case) and in addition to facts surrounding or related to such facts (providing these further facts relate to issues raised in the pleadings). Interrogatories seeking information may not “fish” for the other party’s evidence but may be permitted if they relate to issues raised in the pleadings. Marriott v. Chamberlain was cited in England in Hooton v. Dalby (1907: KBD: 18) where Buckley L.J. said:-

 

 

“The Plaintiff is entitled to interrogate the Defendant as to facts which tend to support the Plaintiff’s case, or to impeach the Defendant’s case, but not as to facts which support the Defendant’s case.”

 

49. This attractively neat formulation has not, in terms, been adopted in Irish law. Later in the judgment Buckley L.J. comments on Marriott v. Chamberlain as follows:-

 

 

“Lord Esher in Marriott v. Chamberlain said:

‘ The right to interrogate is not confined to the facts directly in issue, but extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue’.

This is relied on by the Plaintiff. It is not, I think, sufficient for his purpose. The interrogatories may, it is true, extend beyond facts directly in issue, but the Plaintiff is not entitled to ask the Defendant upon what line of facts he is going to rely as relevant to the existence or non-existence of the facts directly in issue. Shortly put, the interrogatory seems to me inadmissible, because it asks the Defendant on what line of facts he is going to rely in support of his case.”

 

50. It is possible that this aspect of the Irish law can be formulated in the same way as was done by Buckley L.J. in Hooton.

 

51. It is clear that under Irish law interrogatories may be delivered for two distinct purposes –

 

 

(a) To obtain information from the interrogated party about the issues arising in the action – in which case they must relate to issues raised in the pleadings, either directly or indirectly, but not to the evidence (I would suggest “but not otherwise to the evidence”) which a party wishes to adduce to establish his case and certainly not on the line of evidence which the party interrogated intends to adduce at trial.

 

(b) Interrogatories may seek admissions about facts in issue (both directly and facts tending to support those facts) provided they are not fishing for the other side’s evidence.

 

52. Furthermore, interrogatories seeking admissions as to the existence of and signatures to documents which are identified will normally be allowed unless there are special reasons in the interests of justice why they should not.

 

In Mercantile Credit Company of Ireland Limited Costello J. (as he then was) at page 115 set out one of his conclusions as follows:-

 

“Interrogatories which seek admissions about the facts surrounding documents identified in discovery Affidavits must relate to the issues raised in the pleadings and cannot be used as a means to prove the interrogating

party’s case.”

 

53. I must confess to a difficulty in relation to the last phrase of that conclusion. Cotton L.J. in Attorney General v. Gategaskel (1882: 20: CH.D.519 at page 528) is cited in Mercantile Credit Company of Ireland Limited (page 111) as follows:-

 

 

“Discovery is not limited to giving the Plaintiff a knowledge of that which he does not already know, but includes the getting of an admission of anything which he has to prove on any issue which is raised between him and the Defendant … The object of the pleadings is to ascertain what the issues are, the object of interrogatories is not to learn what the issues are, but to see whether the party who interrogates cannot obtain an admission from his opponent which will make the burden of proof easier than it otherwise would have been.”

 

54. The purpose of exhibiting interrogatories is to seek admissions which will become evidence to be relied upon by the interrogating party. They will not prove the entire of that party’s case but will lighten the burden of so doing to the extent that certain elements required to be proved will be established in the replies. I am unable to see, therefore, how admissions about facts “cannot be used as a means to prove the interrogating party’s case”.

 

55. Subject to the foregoing, I consider that the principle tests are established in Mercantile Credit Company Limited as adopted in McCole, and Woodfab. It is in this context furthermore that I understand the observations of Lynch J. in Bula Limited (page 405) when he said:-

 

 

“Interrogatories to be allowable must be as to facts in issue or facts reasonably relevant to establish facts in issue. Interrogatories as to mere evidence as distinct from facts or as to opinions or matters of law such as the meaning or effect of documents or statements or conduct are not permissible.”

 

56. I would comment on these principles set out in the High Court authorities as follows:-

 

(a) The Supreme Court appears to me to place less emphasis than do these cases on the fact that interrogatories are the exception rather than a normal step in pre-trial case preparation which should be encouraged rather than the reverse;

(b) I fail to understand the proposition that admissions made to interrogatories may not be used to prove the interrogating party’s case; and

(c) with regard to the admittedly difficult distinction between facts in issue (which are a permissible subject of interrogatories) and evidence of those facts (which is not), it seems to me that the formulation of Buckley L.J. in Hooton v. Dalby (to the effect that one may interrogate as to facts which tend to support one’s case, or to impeach that of one’s opponent, but not as to facts which support (or disclose?) one’s opponent’s case) provides a useful gloss on the somewhat delphic formulation of Lord Esher M.R. in Marriott. Subject to these comments, I adopt these principles and apply them here.

57. This latter peregrination through the authorities may indeed have clarified little. For myself, however, I can adopt the words of T.S. Eliot in Little Gidding where he says:-

 

 

“We shall not cease from exploration

And the end of all our exploring

Will be to arrive where we started

And know the place for the first time.”

(Four Quartets: Little Gidding)

The interrogatories – do they or any of them satisfy the test?

The Primary Interrogatories

58. There are a large number of these. In the case of the first Defendant, I consider he should answer all save No. 17 (which is unclear). In the case of the fourth Defendant, I consider he should answer all.

 

 

The Supplementary Interrogatories

59. The Plaintiff furnishes the Court with a sample of new interrogatories proposed comprising three questions in relation to “check no X” . I take it that the Plaintiff seeks to exhibit these three interrogatories in relation to each of the cheques in the primary interrogatories.

 

60. In relation to these I am not prepared to compel any of the Defendants to reply to questions number 1 and 2. I consider that in the context of the allegation of fraud it would be unjust to the Defendants to require them to answer these two questions as they raise queries in relation to authorisation, which goes close to the heart of the case. Not only would it be unjust but it seems to me that these questions relate to facts which are capable of supporting the Defendant’s case (given that wrongdoing is denied) and these questions, therefore, seek the Defendants’ evidence which is not permissible. In regard to the third question which relates merely to the fact or otherwise of payment, I see no objection to it and will give the Plaintiff leave to exhibit question 3 of the sample interrogatory in relation to any, some or all of the cheques referred to in the primary interrogatories.

 

 

POSTSCRIPT

61. At the conclusion of the hearing before me Mr Sanfy B.L. told the Court that his solicitor had been informed the by Irish solicitors acting for Cater Allen that they had written to the Plaintiff’s solicitors stating that their clients were not alleging any loss arising out of the impugned transactions in the present case and were not alleging fraud against the Defendants. The relevant letters (both dated the 28th January, 2000) were produced and I have read them. In summary they make the points that

 

(a) Cater Allen has been requesting various documents from the Liquidator without success to date.

(b) They had “already clarified” their position with regard to the £200,000 sterling to the effect that this transaction had been clarified to their client’s satisfaction – and that the further transactions involving £385,445.57 and £551,462.69 sterling respectively had also been clarified to their client’s satisfaction;

(c) Their clients still believe that very substantial monies are due arising out of the mismanagement of the Plaintiff company’s affairs and in this context they were looking for a relevant insurance policy;

(d) Whilst their clients alleged mismanagement and gross negligence “however our client does not claim that these funds have been misapplied or fraudulently misappropriated”;

(e) Their clients had never sought to become involved in the present litigation, and

(f) Mr Nolan (the individual employed by Cater Allen who dealt with the Plaintiff) is no longer in their employ and should be contacted directly by the Plaintiff if they so wished.

 

62. Mr Shipsey S.C. submitted for the Plaintiff that this reinforced the need for answers to the interrogatories because there was now a clear risk that the relevant Cater Allen witnesses would not be available.

 

63. Mr Sanfy B.L. said that the correspondence did not say, in terms, that the witness would not be available. He also insisted that since no complaint was being made by the alleged injured party, the litigation was futile. Furthermore, there were indications in that correspondence that the Liquidator knew before he swore his affidavit that Cater Allen were satisfied at least insofar as the £200,000 amount was concerned and that the Liquidator had allowed a misleading impression to be conveyed to the Court. Mr O’hOisin submitted that in my discretion I should refuse to compel interrogatories and Mr McCullough submitted that a test of fairness overrode all other tests and that it would clearly be contrary to the principle of fairness if, in these circumstances the Liquidator was not obliged to call witnesses who would be subject to cross examination. Mr Marray B.L. emphasised that the Plaintiff was acting on behalf of Cater Allen who had now effectively withdrawn the complaint as made by the Plaintiff.

 

64. In reply Mr Shipsey asserted that the Liquidator’s affidavit was prepared before this correspondence and he denied that the Liquidator was aware that Cater Allen was satisfied as to any of the matters impugned.

 

 

CONCLUSION

65. The Liquidator has responsibilities to all the creditors of the Plaintiff and not only to Cater Allen. The latter’s attitude as revealed in the foregoing correspondence may well impact on his conduct of the trial but I do not agree that the proceedings are necessarily wholly futile, nor am I prepared to infer from this correspondence that the Liquidator has misled the Court. I do agree, however, as indicated in the body of this judgment, that it would not be fair to compel the Defendants to answer the first two of the three proposed supplementary interrogatories and I do not think this position is altered by any difficulty which the Liquidator perceives in procuring Cater Allen personnel or Mr Nolan to give evidence at the trial. For these reasons I do not think I should change the conclusion which I had already reached.

Woodfab Ltd. v. Coillte Teoranta

[1997] IEHC 190; [2000] 1 IR 20; [1998] 1 ILRM 381

JUDGMENT of Mr. Justice peter Shanley delivered the 19th day of December, 1997

 

BACKGROUND

(a) This is an application by the Plaintiff for leave to deliver Interrogatories for the examination of the first named Defendant (Coillte) in the form of a draft annexed to a Notice of Motion dated the 14th July, 1997. There are 1068 Interrogatories set out in the draft. Coillte maintain that through the procedures of a Notice to admit documents it has effectively dealt with some 224 of the Interrogatories sought to be answered – but in any event Coillte takes the basic stance that the Plaintiff has not made out a case justifying the delivery of those Interrogatories and that the Interrogatories which are sought to be delivered are “prolix, oppressive, vague and imprecise” and have not been shown to be essential “in the interests of justice”.

 

(b) Proceedings were commenced by plenary summons dated the

16th February, 1995. Medite of Europe Limited were added as a Defendant as matters proceeded. Ultimately, on the 10th October, 1995, the Plaintiff served a second amended statement of claim on the Defendants to which Coillte delivered a defence on the same date and Woodfab, the Plaintiff, in turn delivered a reply. As appears from a perusal of pleadings it is commoncase that Woodfab is a limited liability company which carries on the business of sawmills and suppliers of timber and that Coillte is a company formed pursuant to the Forestry Act, 1988 and carries on the business of forestry and related activities on a commercial basis. Woodfab alleges (but Coillte denies) that Coillte owns some 90% of all forests and woodlands which have matured to such a stage as to be ready for commercial harvesting and that, Coillte is, in effect, the sole producer of standing timber in Ireland. Woodfab allege that of these forests and woodlands some 95% of the timber is softwood/roundwood. Woodfab allege that it is one of 180 sawmills in Ireland who purchase timber from Coillte. In practice there are only ten to twelve large sawmills (of which Woodfab is one) who between them purchases some 80% of the Coillte supply of timber in any one year. Woodfab purchases 14% of such timber and is one of Coillte’s largest customers.

 

(c) Woodfab contend that Coillte is in breach of Section 4 and 5 of the Competition Act, 1991 and Articles 85, 86 and 92 of the E.C. Treaty. In addition, it is claimed that Medite is also in breach of Sections 4 and 5 of the 1991 Act and Articles 85, 86 and 92 of the E.C.Treaty. The facts Woodfab rely upon in support of its allegation of infringements of Sections 4 and 5 of the 1991 Act and the various Articles of the E.C. Treaty are set out in detail in the Statement of Claim that it delivered in its amended form. As appears from that document the Woodfab case against Coillte is to a very large extent grounded upon allegations of breach of Section 5 of the Competition Act, 1991 and infringement of Article 86 of the E.C. Treaty. The abuses that are complained of (which are denied by Coillte) are, broadly:-

 

(i) that Coillte has refused to supply pulp (which are smaller pieces of wood under 7 metres in diameter and branches) to Woodfab.

 

(ii) that when Coillte put softwood on to the market for sale they do so in one of two ways: firstly, either under a closed tendering system or, alternatively, a Coillte allocation system (CAS). The former (the tendering system) involves a tendering process where Woodfab allege that the highest tenderer will not necessarily be guaranteed the material tendered for, but is in fact required to further negotiate with Coillte on a price after he has been established as the highest tenderer. The CAS system is a system whereby (according to Woodfab) Coillte give a limited number of customers guarantees as to 50% of their prior year purchases of softwood, providing they are prepared to purchase at prices demanded by Coillte and provided certain details of the sawmill’s business are provided to Coillte. The absence of open tendering, and the allocation system for timber, constitutes (according to Woodfab) an abuse by Coillte of its dominant position in the supply of felled softwood timber and undebarked softwood (standing or felled) timber in the State. Woodfab also complained that the refusal to supply pulp is an abuse of Coillte’s dominant position in the market for the supply of that product in Ireland.

 

(iii) Coillte entered into a twenty year agreement with Medite of Europe Limited for the guaranteed supply to that company of all types of timber product (including pulp) at prices which, according to Woodfab, are unrelated to those on the open market. Coillte also entered into a joint venture agreement with an American company called Louisiana Pacific. Under the terms of the joint venture agreement which Coillte entered into, it entered into a further series of agreements with Louisiana Pacific whereby it agreed to supply to that company timber at preferential prices and on preferential terms. the effect of these agreements, says Woodfab, is to restrict unfairly the supply of timber products and to discriminate against Woodfab by applying dissimilar conditions to equivalent transactions with other sawmills such as to place Woodfab at a competitive disadvantage.

 

(iv) The foregoing account identifies the main allegations of Woodfab against Coillte in so far as they relate to alleged breaches of the Competition Act, 1991 and infringements of Articles 85, 86 and 92 of the E.C. Treaty: It is not, however, a complete account of Woodfab’s allegation as they appear in the pleadings. Detailed particulars of the alleged abuses are indeed set out in the Statement of Claim at paragraphs 34 and 34 (A) of that document. These particulars are traversed in the defence (see paragraph 49 of the Defence). I have set out the main allegations made by Woodfab against Coillte and the fact that Coillte have denied these allegations for the purposes of identifying what are the main issues which arise for determination in this Action.

 

(v) The Motion for Interrogatories is grounded on an affidavit of Frank Keane, a partner in William Fry, solicitors for the Plaintiff. A number of matters to which he avers are relevant in my consideration of the application of Woodfab. In his affidavit he states that discovery has been made by Coillte. He also states that a Notice to admit documents was served on Coillte by Woodfab and was answered by Coillte on the 18th April, 1997. In addition, a Notice to Admit Facts was served by Woodfab on Coillte on the 5th June, 1997 but has, as yet, not been answered. He states:-

 

“the delivery of Interrogatories is necessary …. for the purposes of disposing fairly of the cause of action herein”. (paragraph 19).

 

He also states:-

 

“It is of material importance for the fair disposal of this case and for the saving of time and expense that the matters in respect of which Interrogatories are sought to be raised are dealt with by way of Interrogatories”. (Paragraph 21).

(v) Mr. Keane states that the matters in respect of which the Interrogatories are sought relate to the internal affairs of the Plaintiff and, says Mr. Keane, only Coillte can give direct evidence in relation to such matters. In such circumstances, Mr. Keane regards the Notice to Admit and the Interrogatories as “essential evidential aids for the Plaintiff”.

 

THE SUBMISSIONS OF WOODFAB

1. Woodfab submit that this Court should give leave to deliver the Interrogatories because, they say, that it has been established on the basis of the affidavit sworn by

 

2. Mr. Keane that the answering of such Interrogatories are necessary for disposing fairly of the action and for the purposes of saving costs. Counsel on behalf of Woodfab point out that Order 31 Rule 2 specifically sets out the principles by which a court should be guided in deciding whether or not to allow delivery of Interrogatories. Order 31 Rule 2 provides as follows:-

 

 

“A copy of the Interrogatories proposed to be delivered shall be delivered with a notice of application for leave to deliver them unless the court shall otherwise order and the particular Interrogatories sought to be delivered shall be submitted to and considered by the court. In deciding upon such application the court should take into account any offer which may be made by the parties sought to be interrogated to deliver particulars, or to make admissions, or to produce documents, relating to any matter in question. Leave shall be given as to such only of the Interrogatories as shall be considered necessary either for disposing fairly of the cause or matter or for saving costs”.

 

3. Counsel for Woodfab relied strongly upon a decision of Costello J. (as he then was) in Mercantile Credit Company of Ireland Limited and Highland Finance Ireland Limited Plaintiffs -v- John Heelan, Joseph Kenny, James O’Higgins and Portico Limited Defendants 1994 ILRM 105 , in which Mr. Justice Costello considered the scope of Order 31 of the Rules of the Superior Courts 1986. My attention was drawn to pages 115 and 116 of the report of the case where Mr. Justice Costello set out what he considered to be his conclusions in relation to the matter. He concluded that:-

 

 

“[A] Interrogatories which seek admissions as to the existence of documents and signatures to documents identified in discovery documents will normally be allowed unless there are special reasons why in the interest of justice an Order should not be made.

[B] Interrogatories which seek admissions about the facts surrounding documents identified in discovery affidavits must relate to the issues raised in the pleadings and cannot be used as a means to prove the interrogating party’s case.

[C] Interrogatories which seek information must, likewise, relate to the issues raised in the pleadings and not to the evidence to be adduced in the case.

[D] 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. In the course of his judgment Mr. Justice Costello made an observation which does not appear in any of the conclusions which I have set out above. He said:-

 

 

“Leave to deliver Interrogatories will only be given when they are necessary for ‘disposing fairly’ of the cause or matter or for saving costs. In considering the fair disposal of an action commencing by plenary summons the court must bear in mind that such actions are in principle to be heard on oral evidence (Order 1 Rule 2) and that the use of evidence on affidavit given in reply to Interrogatories is an exception which must be justified by some special exigenc y in the case which, in the interests of doing justice, requires the exception to be allowed”. (emphasis added).

 

apart from the foregoing it was contended by Counsel for Coillte that regard should be had to the observation of Lynch J. in Bula Limited -v- Tara Mines Limited 1995 ILRM 401 where at p. 405 he stated:-

 

“Interrogatories to be allowable must be as to facts in issue or facts reasonably relevant to establish facts in issue. Interrogatories as to mere evidence as distinct from facts or as to opinions or matters of law such as the meaning or effect of documents or statements or conduct are not permissible.”

5. The allowance of interrogatories on “facts reasonably relevant to establish facts in issue” is arguably a test of wider latitude than the equivalent tests of Costello J. at [B] or [C] above but the express exclusion by Lynch J. of questions relating to opinions, or as to the meaning or effect of documents, or as to statements or conduct is a qualification of the principles stated by Costello J at [B] and [C] above.

 

6. Counsel on behalf of Woodfab submits that it is necessary for the fair disposal of the present case that the court should require the delivery of Interrogatories: it is submitted that in the circumstances there is a special exigency which requires that in the interest of justice leave be granted. The Plaintiff says that this special exigency arises by reason of the fact that the Plaintiff’s claim against Coillte is one of anti-competitive behaviour and that the Plaintiff for the purposes of establishing such behaviour must adduce evidence as to the internal workings of Coillte, its opinions and policy making processes. This, Woodfab says, cannot be established in the absence of leave being given to it to deliver Interrogatories. Apart from arguing that such a special exigency justifies the delivery of Interrogatories, it is also submitted on behalf of Woodfab that the answering of the Interrogatories which are sought to be delivered would undoubtedly result in a saving of court time and a saving of costs. Finally, it is submitted that the Defendant, Coillte, has not sought to make out on affidavit a case that it will be prejudiced in any way by having to answer the Interrogatories of the Plaintiff.

 

 

THE SUBMISSIONS OF COILLTE

7. Coillte, through their counsel, submit that Woodfab has not established the existence of any special exigency, of the kind identified by Mr. Justice Costello in the Mercantile case, supra; Competition Act cases, it is submitted, are no different from other commercial cases where the internal workings of companies are at the very heart of the cause of action. It was also submitted on behalf of Coillte that there was no need for any replying affidavit to be furnished on behalf of Coillte as the Plaintiff had not, on its own affidavit, made out any case of necessity to interrogate the Defendant. Coillte contended that the burden was on Woodfab to establish that the Interrogatories sought to be delivered were necessary either for disposing fairly of the cause or matter or for saving costs. Counsel for Coillte relied strongly on a dictum of Bingham M. R. in the English Court of Appeal in the case of Hall -v- Sevalco Limited Times Law Reports 27th March, 1996 , where the Master of the Rolls stated:-

 

 

“Interrogatories had to be necessary either for disposing fairly of the cause or matter or for saving costs. Necessity was a stringent test. It could not be necessary to interrogate to obtain information and admissions which were or were likely to be contained in pleadings medical reports discoverable documents or witness statements unless, exceptionally, a clear litigious purpose would be served by obtaining such information or admissions on affidavit.”

 

8. Bingham M. R. went on to say (at page 183):-

 

 

“Interrogatories should not be regarded as a source of ammunition to be routinely discharged as part of an interlocutory bombardment preceding the main battle the Interrogator had to be able to show that his Interrogatories, if answered when served, would serve a clear litigious purpose by saving costs or promoting the fair and efficient conduct of the action.”

 

9. Counsel for Coillte argued that whether the test was one of ” stringent necessity ” or ” special exigency ” or simple ” necessity” the Plaintiff had failed to meet any of those standards and the court should refuse to direct the delivery of Interrogatories. Apart from making the submission that the Plaintiff had failed to satisfy the court that the delivery of Interrogatories were necessary for the fair disposal of the case or for the saving of time or costs, counsel on behalf of Coillte also submitted that a substantial number of the Interrogatories which were sought to be delivered suffered from a degree of prolixity which should disqualify them from being delivered as Interrogatories.

 

 

CONCLUSIONS

(a) No party has a right to have Interrogatories delivered and answered. Order 31 Rule 2 of the Rules of the Superior Courts, 1986 provides:-

 

“[L]eave shall be given as to such only of the Interrogatories as shall be considered necessary either for disposing fairly of the cause or matter or for saving costs.”

 

10. Apart from the provision of Order 31 Rule 2 various authorities which have been opened to me indicating that a Plaintiff will not be permitted as of right to deliver Interrogatories but will have to satisfy the court either that a special exigency or some necessity exists which warrant the delivery and answering of Interrogatories. All of the cases to which I have been referred identify the delivery and answering of Interrogatories as an unusual step in an action commenced by way of plenary summons. Costello J. in Mercantile Credit Company of Ireland Limited -v- Heelan & Others , supra, stated at page 110 of the report, as I have already indicated, that:-

 

“Leave to deliver Interrogatories will only be given when they are necessary for disposing fairly of the cause or matter or for saving costs in considering the fair disposal of an action commenced by plenary summons the court must bear in mind that such actions are in principle to be heard on oral evidence (Order 1 Rule 2) and that the use of evidence on affidavit given in reply to Interrogatories is an exception which must be justified by some special exigency in the case which, in the interests of doing justice, requires the exception to be allowed.’

 

11. These cautionary words of Mr. Justice Costello are echoed in a recent case of UCB Bank Plc -v- Halifax unreported judgment 10th June, 1997of the English Court of Appeal, in which Butler-Sloss LJ, at page 5 of the transcript of the judgment in the case, stated as follows:-

 

 

“It is in my view clear that the administering of Interrogatories is not a normal step in the proceedings, and will not automatically be allowed at any stage. They have to be shown to be necessary in accordance with the requirements of Order 26 Rule 1 and have to serve a clear litigious purpose. Further a suitable time if at all for Interrogatories to be administered is after discovery and exchange of witness statements and to do so at an earlier stage will almost always be premature”.

 

12. As I have indicated, the various decisions to which I have been referred have gone to some length to emphasise that giving leave to deliver Interrogatories must be regarded as an exception in any case to be heard on oral evidence and must be justified by the party seeking to deliver Interrogatories. That the party seeking leave to deliver Interrogatories must establish that they are necessary can be seen from Order 31 Rule 2 of the Rules of the Superior Courts. However it does appear that once the party seeking to deliver Interrogatories satisfies the court that such delivery would serve a clear litigious purpose by saving costs or promoting the fair and efficient conduct of the action in question then the court should be prepared to allow the delivery of the Interrogatories unless it is satisfied that the delivery and answering of the Interrogatories would work an injustice upon the party interrogated. What I have just said is, I believe, simply another way of restating what is said in Order 31 Rule 2 of the Rules namely that leave shall be given to serve Interrogatories where it is considered “necessary either for disposing fairly of the cause or matter or for saving costs”. The Court must of course look at each and every Interrogatory for the purposes of determining whether or not it is necessary to be answered for the purpose of disposing fairly of the cause or matter or for saving costs. In doing so it will take into account a number of matters. Those matters have been summarised by Mr. Justice Costello in Mercantile Credit Company Limited -v- Heelan , which I have already referred to, but which bear repeating:-

 

 

“[a] Interrogatories which seek admissions as to the existence of documents and signatures to documents identified in discovery documents will normally be allowed unless there is special reasons why in the interests of justice an Order should not be made.

[b] Interrogatories which seek admissions about the facts surrounding documents identified in discovery affidavits and must relate to the issues raised in the pleadings and cannot be used as a means to prove the interrogating parties case

[c] interrogatories which seek information must, likewise, relate to the issues raised in the pleadings and not to the evidence to be adduced in the case.

[d] though 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. ”

 

13. I respectfully adopt the foregoing as criteria which should be applied by the Court in deciding whether or not to permit interrogatories to be delivered together with the view expressed by Lynch J. in bula Limited -v- Tara Mines Limited, supra , that questions as to opinions, the meaning or effect of documents or as to statements or conduct should not be permitted.

 

14. The questions which are here sought to be answered by way of Interrogatory can be divided into the following subject categories:-

 

 

(A) Market share.

(B) Agreements with other parties.

(C) Annual financial reports.

(D) Board meetings at which issues as to performance indicators, corporate plans and pricing and marketing were discussed.

(E) The tendering process and the sale of timber.

(F) Regional meetings.

15. I am satisfied that the questions which I propose to allow are all questions which meet the criteria spelt out by Costello J. in Mercantile Credit, supra , and which are not excluded on the basis of the observations of Lynch J. in the Bula case , supra, on the grounds that they relate to opinions, conduct, or the meaning or effect of documents. While I am satisfied that the information sought and the admissions sought relate to issues raised in the pleadings I must also be satisfied by the Plaintiff that the answers to the questions raised in the Interrogatories are necessary for fairly disposing of the matters in issue or, alternatively, that answering the questions will save costs. In that regard I should say that I do not accept that the fact that the case is a Competition Act case places it in any special category such as would justify by itself the delivery of Interrogatories: while Sections 4 and 5 of the Competition Act, 1991 and Articles 85 and 86 of the EC Treaty necessarily involve an assessment of the behaviour of the Defendant in the market place and may indeed involve a factual assessment of the Defendant’s internally developed pricing policies over time, nonetheless, it may be said that many other causes of action will also necessarily focus on the behaviour of a company (whether in the market place or elsewhere) and its internal policy making for the purposes of establishing liability in that Defendant company. The fact that the case is a Competition Act case therefore does not constitute, in my view, a ‘special exigency’ warranting the delivery of Interrogatories. I am, however, satisfied that the answers to the Interrogatories which I propose to allow be delivered will undoubtedly save costs. I am also satisfied that by permitting the delivery of the Interrogatories (to which I shall refer later) I am ensuring that no injustice to the Plaintiff will result from having to call the Deponent (namely the person answering the Interrogatories) and being deprived of the right to cross-examine him. This is a matter which Mr. Justice Costello in the Mercantile Credit Company case, supra , regarded as a factor which the court was entitled to take into account in considering whether it ought to permit Interrogatories. Apart from the saving of costs and the possibility of an injustice being worked, I am also satisfied that the answering of the proposed Interrogatories will serve to save time during the course of the trial of the action rather than prolong the trial of the action. In all the circumstances, I am satisfied that the Plaintiff has made out a case for the court to conclude that leave should be given to deliver the Interrogatories set out below on the grounds that the delivery of such Interrogatories is necessary either for disposing fairly of the cause or matter or for the saving of costs.

 

16. While I propose to make an Order giving the Plaintiff leave to deliver Interrogatories, an analysis of the 1068 questions discloses that certain of the Interrogatories should not be required to be answered by the Defendant. The reasons differ. Hereunder I list the reasons. In the schedule annexed to this judgment I list the questions which need not be answered. The reasons are:-

 

 

(A) Certain of the questions are based upon an hypothesis i.e. a fact yet to be established in evidence at the trial.

(B) Certain of the questions are unnecessary; for example where there is a question asking if certain accounts are true and accurate, it is unnecessary (until a negative answer is given) to ask further questions as to the accuracy of particular facts in those accounts. Woodfab shall have liberty to apply in this regard.

(C) Certain of the questions relate to the opinions or policy positions held by Coillte at different times and by officers of Coillte. I believe that to require a single deponent to answer questions as to opinion or policy of Coillte or its officers or management might work an injustice on the Defendant and might result in the absence of a fair hearing. Accordingly I have determined that such questions need not be answered by the Defendant.

(D) Certain of the questions arguably require the Defendant in answering under oath to draw inferences from facts set out in a document which is clearly an undesirable use of the interrogatory provisions of Order 31.

 

Leahy v. Southern Health Board

[2005] IEHC 230 (20 April 2005)

DECISION OF THE MASTER OF THE HIGH COURT 20TH APRIL 2005

This is an application by the plaintiff for leave to deliver sixty two interrogatories on the defendant. It is misconceived.

Most practitioners are now reasonably familiar with the requirement that, for the purposes of a Discovery application, circumstances which have created an evidential deficit for the applicant should be deposed to. The Court needs to have material before it to enable it to judge whether discovery is necessary to secure that the litigation proceeds fairly. Sometimes – rarely, it must be said – that material is self evident from the pleadings. In other cases – most cases in fact – the reason discovery is being sought needs to set out on affidavit.

Ensuring fair litigation is also the primary yardstick to be applied in applications for interrogatories. Requiring the respondent to depose to facts in advance of the trial is a patently unfair departure from the standard time honoured mode of trial. To persuade the Court to make such an order an applicant must establish, on affidavit, circumstances of a sort which occur only rarely, an exception to the pattern of events generally found in litigation. The terms “special exigency” has been employed to describe such circumstances.

While an applicant may occasionally experience some little difficulty in persuading the Court to allow him access to his opponents documents to enable him to find a missing piece of the factual jigsaw, this difficulty will be as nothing compared to the mountain he must climb to persuade the Court that a “special exigency” exists which requires that, in fairness to him, his opponent should be ordered to go into evidence before the trial of the action.

A special exigency will almost never be apparent on the face of the pleadings.

This case is brought by the plaintiff because he fell in Cork University Hospital on 9th July 1998 and sustained a broken nose and a laceration to the left side of his forehead. The circumstances of the fall are not set out in the Statement of Claim, not even, as so often happen, in the particulars of negligence. But it is there we find two particulars, namely “failing to diagnose adequately or . . . provide adequate treatment in respect of the injuries caused to the plaintiff” which are out of place and relate to a different action not brought in these proceedings: this case is about the fall, not the treatment afterwards. The plaintiff’s solicitor, or particulars furnished 14th June 2000, inconsistently asserts that the plaintiff “is 66 years of age and was born on 1st May 1944”. The defendant pleads that the plaintiff had consumed a quantity of alcohol which “precipitated his collapse at home and subsequent weakness” and that his fall was “due to an episode of generalized seizure”.

There is an understandable misconception about interrogatories. Because the procedure involves the swearing of an affidavit by the respondent setting out facts which go towards building and completing the applicants case, the purpose of the exercise is thought to be to secure admissions. It is not. It is about information. Occasionally the information is of such a nature as to be unambiguously supportive of the applicant’s case but that is not the basis on which the interrogatory ought to be sought or ordered. Interrogatories are about information. Occasionally, but only occasionally, that information will amount to an admission, but interrogatories to secure, as such, an admission of a material fact in issue will be ordered only in truly exceptional circumstances the like of which it is impossible to speculate on or postulate.

The case law is clear cut. The information being sought by the applicant must be as to facts which relate to facts which are in issue. The respondent cannot be asked anything other than whether the specified fact is true or false. He cannot be asked what his source of knowledge is for his answer.

Of the interrogatories suggested by the plaintiff in this case thirteen are requests for names and addresses. These are clearly inappropriate. Six more ask whether named or unnamed persons witnessed the fall. This is not a fact which relates to a fact in issue (in the technical sense of being probative thereof): it is a query as to whether there is other evidence of the fall, and is then followed by the query about the address of such witness.

9. Did not any patients witness the Plaintiff’s fall?
10. It the answer to the 9th interrogatory is yes, what are the names and addresses of those persons?
11. Did not any other persons witness the Plaintiff’s fall?
12. If the answer to the 11th interrogatory is yes, what are the names and addresses of those persons?
13. Was not there any other patients in the A & E Department at the time of the Plaintiff’s fall on the 9th Day of July 1998?
14. I the answer to the 13th interrogatory is yes, what are the names and addresses of those persons?
Then there are some questions about the recording of the incident, together with the following

14(sic) Did not a member of the hospital staff (medical, nursing or otherwise discover that the Plaintiff had fallen?
19. Was not a doctor in charge of the Plaintiff’s care at the Accident and Emergency Department of Cork University Hospital?
There are five questions about the defendant’s knowledge of the plaintiff’s history, (including two “why not” questions (22 and 24), followed by a long series of questions about the plaintiff’s bed or trolley. 36, 37.

Questions 41 to 44 are missing.

From 45 onwards are eight questions about post accident treatment, and finally, at 60 to 62, three questions about staff shortages. A total of fifty six questions.

Interrogatories must be formulated in such a way as to permit an answer which is a simple affirmative confirmation or the opposite. “Did not. . . ?”

“has not . . .?” etc. is the format specified in the Rules. “Why not?” is not acceptable. Nor is “where is. . .” or “who has . . .”or “what is . . .”? And certainly not “what precautions . . .”?

Of course, the “did not, was not . . .”? test is nothing but a first order test. It is a test of form and not of substance. Satisfying the test is neither a sufficient nor a necessary condition for a successful application. But as a first test, it is a useful indicator as to problems with the substance of the interrogatory. Likely as not, if the interrogatory cannot be answered with a “yes” or “no” the substance of the question is likely to wide of the mark. For example “if not, why not . . .”? is likely, on closer scrutiny, to be query seeking to fish out secondary (therefore, immaterial) facts. And the question “who . . .”? is one seeking the names of potential witnesses, enquiring, in other words, as to evidence rather than seeking factual information. Closer scrutiny may reveal the essence of questions, however formulated, as concerning inferences opinions or the evidence of third parties, none of which is appropriate as the subject matter of an interrogatory. Factual information alone may be sought and only factual information directly probative of material facts in dispute. The highest quality evidence of such facts is, of course, an admission. Admissions are, in that sense, at the extreme end of the spectrum of relevant information. But interrogatories seeking admissions of facts directly and clearly in issue on the pleadings will not be permitted.

There appear to me to be only two interrogatories, properly framed, and concerning facts which are related to material facts in dispute and these are:

21. Was not the Doctor in charge of the Plaintiff’s care, at the A & E Department of Cork University Hospital, aware that t he Plaintiff had a history of collapse?
23. Was not the Doctor in charge of the Plaintiff’s care, at the A & E Department of Cork University Hospital, aware that the Plaintiff had a fluctuating level of consciousness?
But looking again at the Defence we see that the defendant makes a plea which cannot be advanced by it unless it intends to offer evidence of the plaintiff’s weakness and prior collapse “at home”. I am of the view that, such being the Defendant’s stance, the two interrogatories are concerned with a fact which is effectively not in issue.

Even if I am wrong in rejecting the interrogatories on the technical basis above outlined it would be open to the Court to reject the application out of hand because of the complete failure to establish the existence of a special exigency. In his grounding affidavit the solicitor for the plaintiff says that he sought voluntary discovery and received certain documents by way of response. It should be noted in 1998 the Defendant furnished a full copy of all Cork Hospital notes to the plaintiff’s solicitor. (Par. 6). He goes on, at paragraph 9, to say –

“The Defendant has the sole knowledge as to the circumstances, background and nature of the accident herein given the condition and nature of the plaintiff at the time of the accident. I say that it is not revealed in the notes and records that I have received from the Defendant any information as to the circumstances of the accident and I say that this information must be within the remit of the Defendant.”
So the plaintiff himself has no knowledge of the material facts, has he not? In making this averment, the plaintiff’s solicitor is in effect admitting that his client was drunk and unable to know what he was doing. Something of an “own goal” perhaps?

The term “exigency” means “an urgent need”. So says the Oxford dictionary. In the context of litigation the “urgency” refers to the immediacy of the need, the fact that the information is needed ahead of the trial. The information will of course normally be available on cross examination during the trial, but that will be, for the applicant, too late: the trial will be unfair.

In Croften Properties Limited – v – Genport Limited 2001 McCracken J. re worded the test by asking whether “establishing these facts by way of interrogatories is in any way more unjust or prejudiced to the respondent than to call witnesses . . . at the trial”.

In Woodfab Limited – v – Collte Teo 200 IR Shanley J. noted that the test might be described (as had been done by Bingham M.R. in Hall – v – Sevalco Limited TLR. 27.3.96) as one of “stringent necessity”, and quoted the Master’s dictum that:-

“It could not be necessary to interrogate to obtain information or admissions which were or were likely to be contained in pleadings, medical discoverable documents or witness statements unless, exceptionally, a clear litigious purpose would be served by obtaining such information or admissions on affidavit”.
Miss Justice Laffoy, in McCole – v – The Blood Transfusion Service Board employed the concept of “clear litigious purpose at this juncture”, and applied the test as to whether interrogatories were “essential for the proper presentation of the applicants case that the information be furnished at this juncture”, citing with approval Det Danske – v – KDM 1994 2 Lloyd’s Reports 534, 537:-

“essential . . . in the sense that if the matter is left until cross examination at the trial that party will or probably will be irremediably prejudiced in his conduct of the trial or the trail may be unduly interrupted or otherwise disorganised by the later emergence of the information”.
Note that in respect of interrogatories 31, 32, 33 in the McCole case, Miss Justice Laffoy accepted the respondents submission that some were not necessary in that sense, saying that:

“It seems to me that the matters the subject of the interrogatories are matters to be dealt with in oral evidence by the plaintiffs expert witnesses and through cross examination of the witnesses of the defendant at the trail of the action”.
Returning to the source of the test special exigency, namely Costello J. (as he then was) in Mercantile Credit Co. Limited – v – Heelan 1994 ILRM regard must be had to the “common example” which he set out in the judgment, as follows (p. 410)-

“In a road traffic accident an injured plaintiff has to establish his claim by oral evidence and will not normally be allowed to deliver interrogatories for this purpose. But if the injuries have caused a loss of memory so that a plaintiff cannot recall the accident and there are no witness interrogatories will be allowed and affidavit evidence permitted relating to the issue of negligence and damages so that justice may be done”.
In the instant case, the Court really has no clear evidence as to what the plaintiff can recall of his admission to hospital and his fall. Surely he can give evidence that he was uninjured when he arrive and injured when he left? Surely (the defendant’s denial notwithstanding) the Hospital’s records record his being treated for the injuries he complains of, and do not record his as complaining of such injuries on his arrival? Surely the Court can, by inference if necessary, conclude that the defendant did not take reasonable care for the plaintiff?

In this application, the plaintiff has not established that he cannot prove his case at trial unless he now gets the information he seeks by way of interrogatories. There is no “special exigencies” of the sort envisaged by Costello J., Laffoy J., Shanley J. or McCracken J.

I refuse the application.

Edgill v. Cullen.

[1932] IR 738

KENNEDY C.J. :
In my opinion this appeal should be allowed.
The plaintiff in the action alleges that he was knocked down by a motor car negligently driven in February last year and claims damages. His injuries (as alleged) were of such a character as to prevent him from particularly observing the car by which he was struck. He was so flurried as not to be able to get particulars of the number on the car. He was, however, informed by some person, a witness of the accident, but not named, that the number was ZI. 3699. He then ascertained the name and address of the registered owner of the car of that number, and launched this action against a person of that name and address as defendant.
The pleadings have closed. The defences include a plea of contributory negligence. Before going further the plaintiff is anxious to be assured that he has named as defendant the actual owner of the car by which he was struck. He therefore wants to administer interrogatories to the defendant to discover, first, whether the defendant was in fact the owner of a motor car, registered No. ZI. 3699, and secondly, whether, as he seeks to put it, “did the said motor car, or any motor car of the defendant, come into contact with the plaintiff on the evening of the 11th February, 1931, at or near the corner of Parnell Square, in the County of the City of Dublin?” (being the date and place of the alleged accident). Thirdly, he seeks to put the following further interogatory: “3. If the answer to No. 2 be in the affirmative, was the driver of the said motor car on the said occasion either the defendant, or some servant, or agent of the defendant? If not, what is the name and address of the driver?” The defendant ignored a notice served upon him requiring him to answer these questions, and the plaintiff applied to the Master, who put the case in the Judge’s list for a ruling.
The application came before Mr. Justice Hanna, who dismissed it on three grounds, namely:first, that they were”fishing” interrogatories; secondly, that the application had not been presented with candour; and thirdly, that the form was irregular.
The learned Judge merely stated, but did not develop, these grounds, and we have not been greatly assisted as to how he arrived at them. There is nothing to explain the meaning of the “lack of candour.” There is no doubt, and Mr. Fitzgerald admits it, that the interrogatories might have been better framed.
Now, in my opinion, the first of the proposed interrogatories is not to be disposed of in the same way as the other two, which are of a quite different type. It is, however, submitted to us by the defendant that it was a discretionary matter for the Judge to refuse to allow that interrogatory to be administered, and that no injustice could ensue from such refusal.
In my opinion the first was a reasonable and fair interrogatory. It is not an attempt at merely “fishing,” but asks for specific information necessarily within the defendant’s knowledge, namely, whether the defendant was at a specified time the actual owner of a specified car of a given registration number, the name of the registered owner of which is the same as his. If the answer be in the negative, this action may be discontinued and all the costs of a trial saved. If not allowed to get this information, the plaintiff may be victimised by being allowed to go on with the action under a mistake as to the indentity of the owner of the car (which is suggested). Therefore, in my opinion, the interrogatory is not, as Mr. Black says, trivial, and it should have been answered by the defendant.
The second and third interrogatories are on a different plane. The element of “fishing” is indicated in the framing of these questions, but, notwithstanding this fact, there is contained in them some matter which, if put in another form, might have been properly put in order to prevent injustice.
I think the plaintiff is entitled to have an answer from the defendant as to whether his carif he admits it was his carwas on the occasion in question at the place mentioned at the hour mentioned. He is entitled to know if the defendant personally was driving the car, and if not, if he knows who was driving it, but the plaintiff is not entitled to administer an interrogatory as to whether the person was a servant or agent of the defendant, which involves a question of a difficult character of mixed law and fact. The defendant was entitled to refuse to answer questions 2 and 3 in the form in which they were put. Mr. Fitzgerald is satisfied to accept the questions in the form I suggest, namely:
“(1) Was the defendant on the 11th of February, 1931, the owner of the motor car registered under No. ZI. 3699?
(2) If ‘Yes,’ was the said car driven on the 11th of February, 1931, at or about the hour of 8 o’clock p.m. at or near the north-east corner of Parnell Square, in the County of the City of Dublin?
(3) (a) If ‘Yes,’ was the said motor car driven at the time and place aforesaid by the defendant?
(b) If not, does the defendant know by whom was the said car then and there driven?
And if ‘yes,’ state the name and address of such person.”
In my opinion, interrogatories in this form may properly be addressed to the defendant.

FITZGIBBON J. :
I agree in general with the judgment given by the Chief Justice, but I wish to say, with regard to the first interrogatory, that I cannot see how it can fairly be described as “fishing,” and it was not rejected on the ground that it was trivial, as is now suggested. Before the application was made to deliver interrogatories notice to admit facts was served, and one of the facts, the admission of which was requested, was:”Was the defendant on the 11th February, 1931, the owner of a motor car, registered No. ZI. 3699?” and I can see no reason why it was not answered. Up to the conclusion of the argument in this Court the defendant has absolutely refused to answer that perfectly reasonable question either by admission or denial, and I consider that the plaintiff ought to be allowed to administer interrogatories in the form set out by the Chief Justice.

MURNAGHAN J. :
I have come to the conclusion that this application should be refused.
The application for an order to deliver interrogatories is, under the express terms of the Rule of Court, subject to the leave of the Court or Judge. After the Judicature Act no leave was required, and the earlier English authorities cited during the argument which allowed interrogatories as a matter of right are of no application now that the Rule has been altered. Each application must depend upon a discretion exercised upon the facts of the particular case.
After the exhaustive argument before us I am of opinion that interrogatories Nos. 2 and 3 should not be allowed. Interrogatories of a much more limited scope might in the Judge’s discretion be granted, but no such limited interrogatories were sought before Mr. Justice Hanna and were not the subject of his order.
As to interrogatory No. 1, I think the Judge had a discretion to say whether it was necessary, having regard to the fact that the plaintiff was in possession of a certificate of registration of ownership. The Judge appears to have thought it was not necessary, but was a “fishing” interrogatory. I see no ground for saying that he was wrong in this view, but, if he was, it was, in my opinion, an erroneous exercise of discretion, and was not due to any error in principle. Such erroneous exercise of discretion is not, according to the case cited by the defendant’s counsel, Peek v. Ray (1), the subject matter of appeal.

Mercantile Credit Company of Ireland Ltd and Highland Finance (Ireland) Ltd v Heelan and Ors

[1994] 1 ILRM 406
Costello J

The first named plaintiff (‘Mercantile Credit’) is a banking company. The second named plaintiff (‘Highland Finance’), is a finance company and is a subsidiary of Mercantile Credit. Mr John Heelan (the first named defendant) was general manager of Highland Finance from 22 July 1983 to 28 February 1989. In March 1989 he became a director of Mercantile Credit and in November 1989 its managing director, a post he retained until he was suspended on 7 June 1990. Mr Joseph Kenny is a business man with whom both Mercantile Credit and Highland Finance had extensive dealings. He and his wife own a company called Portico Ltd (the fourth named defendant) to which Mercantile Credit and Highland Finance lent considerable sums in the period relevant to these proceedings. Mr James O’Higgins (the third named defendant) is a solicitor. He acted as solicitor for Mr Kenny and for Portico Ltd in the transactions which have given rise to these proceedings.

The plaintiffs claim very substantial damages against the defendants under a number of different headings. It is claimed that they conspired to defraud the plaintiffs (paragraph 7 of the amended statement of claim), that the plaintiffs were induced to make loans specified in the pleadings on the faith of fraudulent representations made by the defendants (paragraph 10), that there is a balance due on the loans which with interest amounted to £9.4m approximately up to May 1991, that Mr Heelan and Mr O’Higgins were guilty of breach of a fiduciary duty which they owed the plaintiffs.

More specifically the claim against Mr O’Higgins (the party in the motion for interrogatories which I am now considering) is that as solicitor for Mr Kenny and Portico Ltd he gave letters and undertakings in writing to the plaintiffs which were part of the conspiracy to defraud them, that he knew or ought to have known that the undertakings could not be complied with, that he falsely represented to the plaintiffs that there were independent funds or securities available which were under his control and which would be adequate security for the loans granted to Mr Kenny and his company. In two schedules to a reply to a notice for particulars (dated 17 October 1991) the plaintiffs gave particulars of the loans made to Mr Kenny and his company and the dates of the undertakings given by Mr O’Higgins and also of loans made to Mr O’Higgins personally. It is part of the plaintiffs’ case that these loans were obtained by Mr O’Higgins on behalf of his client Mr Kenny. Of course, not all the loans were left unpaid, but the plaintiffs’ case is that each was part of the fraudulent conspiracy alleged against the defendants.

The pleadings have closed. Mr O’Higgins is strongly contesting the claims against him. On 22 September 1993 the plaintiffs furnished interrogatories for answer by him. On his refusal the present motion has been brought under O. 31 [of the RSC 1986]. The interrogatories relate to 33 loan transactions which took place in the period between the months of May 1988 and June 1990. Extensive discovery has been made and the plaintiffs have identified a number of documents, including copies of cheques, journal entries, bank drafts, letters which they claim relate to each of the transactions they have identified and in respect of which they wish to interrogate Mr O’Higgins. The interrogatories fall into a number of categories:

(a) they ask Mr O’Higgins to identify the documents and to confirm that the entries to which reference is made relate to the particular loan transaction to which the interrogatory relates (the purpose being to establish what happened to the money the subject of the loan);

(b) they ask Mr O’Higgins to establish certain facts about the security relating to the loan transaction;

(c) they ask Mr O’Higgins for information concerning:

(i) the instructions he received about the loan and/or

(ii) his client, and Mr Kenny’s knowledge concerning the loan transaction;

(d) they seek information concerning the securities given in respect of certain of the loans;

(e) they seek information concerning the movement of the sums represented by the loans.

Mr O’Higgins contests the right of the plaintiffs to deliver any of the interrogatories, on a number of grounds. He points out that the plaintiffs have complained to the garda authorities about the matters in suit and he expresses the belief that they may wish to have him prosecuted in the criminal courts, and claims in these circumstances that he has a right to claim privilege in respect of the queries he is asked to answer. He also says that the interrogatories are oppressive as what the plaintiffs are proposing is to reverse the ordinary conduct of a civil trial which would oblige them to tender their own evidence and establish a prima facie case before the defendant would be required to give any evidence. In addition it is said that the plaintiffs had organised their affairs in a highly negligent manner, that the delivery of interrogatories would deprive him of the opportunity to adduce evidence by means of cross-examination of one of the plaintiffs’ witnesses and so establish one of his defences to the claim, namely that the plaintiffs’ losses were occasioned through their own default. On the first point counsel accepts that these objections should rightly be taken after the interrogatories are delivered, should the court so order.

Legal principles
O. 31

O. 31 makes provision for the delivery of interrogatories. Parties may deliver interrogatories but only interrogatories ‘which relate to any matters in question in the cause or matter’ (r. 1). Where leave of the court is required such leave is given to deliver ‘such only of the interrogatories as shall be considered necessary either for disposing fairly of the cause or matter or for saving costs’ (r. 2). Interrogatories are replied to by affidavit (r. 9) and at the trial any party may use in evidence any one or more of the replies (r. 24).

Some general observations on these rules are called for. Firstly, interrogatories must relate to ‘any matter in question’ in the action. Whilst at first sight this might seem to permit a party to interrogate an opponent on every issue that might arise in the action and so permit evidence on oath on every issue to be used at the trial as the interrogator may consider useful to his case, this is not so. Leave to deliver interrogatories will only be given when they are necessary for ‘disposing fairly’ of the cause or matter, or for saving costs. In considering the fair disposal of an action commenced by plenary summons the court must bear in mind that such actions are in principle to be heard on oral evidence (O. 1, r. 2) and that the use of evidence on affidavit given in reply to interrogatories is an exception which must be justified by some special exigency in the case which, in the interest of doing justice, requires the exception to be allowed. This point can be illustrated by a common example. In a road traffic accident an injured plaintiff has to establish his claim by oral evidence and will not normally be allowed to deliver interrogatories for this purpose. But if the injuries have caused a loss of memory so that a plaintiff cannot recall the accident and there are no witnesses interrogatories will be allowed and affidavit evidence permitted relating to the issue of negligence and damages so that justice may be done.

Secondly, interrogatories may be delivered for two distinct purposes, (a) to obtain information from the interrogated party about the issues that arise in the action and (b) to obtain admissions from the party interrogated. This was established long ago in Attorney General v. Gaskill (1882) 20 ChD 519. This was a case in which the Attorney General instituted proceedings to restrain the defendant from building across a public right of way. It was claimed that the defendant had settled the claim on certain agreed terms and the proceedings were to enforce this agreement or alternatively to restrain interference with the right of way. The defendant denied the existence of the right of way and claimed that the agreement had been obtained by pressure and threats. The plaintiff delivered interrogatories as to the right of way and as to conversations leading up to the agreement. It was held that the defendant was bound to answer the interrogatories relating to the right of way because the purpose of interrogatories was to enable a party to obtain admissions and so to be relieved of the need to adduce evidence and that interrogatories relating to the conversations were allowable and the plaintiff was not entitled to refuse to answer them until the account of the conversations had been adduced in evidence by the plaintiff. In the course of his judgment Cotton LJ at p. 528 said:

Discovery is not limited to giving the plaintiff a knowledge of that which he does not already know, but includes the getting of an admission of anything which he has to prove on any issue which is raised between him and the defendant …. The object of the pleadings is to ascertain what the issues are, the object of interrogatories is not to learn what the issues are, but to see whether the party who interrogates cannot obtain an admission from his opponent which will make the burden of proof easier than it otherwise would have been.

Thirdly, when information is sought the interrogatories must relate to the issues raised in the pleadings and not to the evidence which a party wishes to adduce to establish his case. Marriott v. Chamberlain (1886) 17 QBD 154 was a libel action in which the defendant pleaded that the words complained of were true. The words complained of were to the effect that the plaintiff had fabricated a story about a circular letter which the defendant had signed and sent around to his business competitors. The plaintiff said he had seen copies of the letter and in interrogatories administered by the defendant the plaintiff was asked about a claim that he had been told by a well known solicitor of the existence of the letter. The Master of the Rolls stated:

The law with regard to interrogatories is now very sweeping. It is not permissible to ask the names of persons merely as being the witnesses whom the other party is going to call, and their names not forming any substantial part of the material facts; and I think we may go so far as to say that it is not permissible to ask what is mere evidence of the facts in dispute, but forms no part of the facts themselves. But with these exceptions it seems to me that pretty nearly anything that is material may now be asked. The right to interrogate is not confined to the facts directly in issue, but extends to any facts the existence or non-existence of which is relevant to the existence or non existence of the facts directly in issue.

The difficulty of applying the distinction between interrogatories which relate to the facts in dispute and interrogatories which relate to the evidence of the facts in dispute is illustrated by Nash v. Layton [1911] 2 Ch 71 in which the plaintiff, who brought the proceedings to enforce a charge given by the defendant to secure a loan made to him by the plaintiff was met by a defence that the plaintiff was a moneylender who was not registered under the Moneylenders Act 1900. The defendants claimed to be entitled to deliver interrogatories as to what other loans the plaintiff had made before the loan in question and the terms of such loans (if any). Joyce J held that these were not allowable. On appeal, in his minority judgment Fletcher Moulton LJ expressed the opinion that earlier loans made by the plaintiff might be evidence that the plaintiff was an unregistered moneylender but interrogatories were not allowable relating to them because evidence of the facts in dispute could not be the subject of interrogatories. The view of the majority was that interrogatories in fact related to facts which were in dispute and were therefore allowable.

The interrogatories
The plaintiffs’ interrogatories in this case not only seek admissions from Mr O’Higgins but also information. It is therefore necessary to ascertain precisely what are the issues raised in the pleadings against him.

From the pleadings and the plaintiffs’ reply to a notice for particulars dated 17 December 1993 I can summarise the principal facts which are in issue between the parties as follows:

(1) Whether the defendants between 1 May 1988 and 28 July 1989 conspired to defraud the plaintiffs.

(2) Whether on the dates set out in the statement of claim on which it is alleged Mr O’Higgins gave letters of undertaking to one or other of the plaintiffs he conspired to injure the plaintiffs.

(3) Whether on each of the dates on which loans or advances were made by the plaintiffs to any of the defendants as specified in the statement of claim the defendants so conspired.

(4) Whether Mr O’Higgins conspired by furnishing the undertakings specified in the statement of claim which he knew could not be complied with, or by agreeing to supply such undertakings.

(5) Whether Mr O’Higgins conspired to injure the plaintiffs by falsely representing that there were funds available to secure the loans to be made by the plaintiffs as detailed in the statement of claim.

(6) Whether Mr O’Higgins conspired to injure the plaintiffs by permitting his co-defendants to deal with the funds to the detriment of the plaintiffs.

(7) Whether Mr O’Higgins conspired to injure the plaintiffs by representing, or assisting his co-defendants to represent, that loans had been repaid which had not been repaid and that an undertaking had been properly released when this had not been properly released.

(8) Whether Mr O’Higgins made representations to the plaintiffs which he knew were false to the effect that he had independent funds in his possession or under his control which could properly be regarded as security for the loans made by the plaintiffs as specified in the statement of claim.

(9) Whether Mr O’Higgins owed a fiduciary relationship to the plaintiffs and if so whether he breached it.

(10) The damages suffered by the plaintiffs.

(11) Whether there is a balance due to the plaintiffs on foot of loans advanced to the defendants which is properly payable by Mr O’Higgins to them.

(12) Whether the plaintiffs were guilty of negligence.

I turn now to the interrogatories which the plaintiffs want answered.

Although the admissions and information sought in respect of each of the 33 transactions is not identical there are a considerable number of points of similarity to be found in all of them. In all, 820 questions are asked. To illustrate the nature of the information and admissions sought generally, it will suffice if I refer in detail to interrogatory No. 1 which relates to a loan reference No. MTL 0026 for £500,000 made to Mr Kenny by Highland Leasing pursuant to a letter of undertaking dated 4 May 1988 signed by Mr O’Higgins.

The interrogatory contains 35 questions. It asks Mr O’Higgins to admit that he signed the letter of 4 May 1988 and then seeks information about the letter, asking whether it was written on Mr Kenny’s instructions. The letter refers to a bank draft which Mr O’Higgins says he holds and he is asked to identify a copy of the draft. He is then asked whether he lodged the proceeds of the draft on 6 November 1988, whether he received a letter (which is identified) from Mr Kenny about the draft, whether he received another bank draft for £2.5m payable to himself on 28 November 1988 from Mr Kenny, whether he took any steps to confirm its authenticity, whether he was told that it was a forged draft, or that it had been stolen and whether he informed the Garda Síochána that it was lost or stolen. He was then asked about another cheque dated 16 May 1988 payable to ‘Mr Heelan’ and was asked whether he had drawn it on the instructions of Mr Kenny or of Mr Heelan, the first named defendant. He was asked to identify a ledger card which he maintained in his office in Mr Kenny’s name and whether he acted as solicitor for Mr Heelan and whether a ledger card appended to the interrogatory related to Mr Heelan. He was asked about a payment of £25,000 to him on 12 May 1988 by means of a bank draft issued by the Ulster Bank and whether this sum is the same sum as appears in Mr Heelan’s ledger card. He asked further questions about this sum by reference to his client’s account and questions about a sum of £452,445 received on 15 November 1988 from the Industrial Credit Corporation and a payment to Highland Leasing for this amount on the same date and whether this was to discharge the indebtedness of Mr Kenny to Highland Leasing and whether the cheque was not met. He was also asked about an entry of a credit item of £25,000 in Mr Kenny’s ledger card on 2 November 1988 and whether he had given an undertaking to Century Finance Ltd which was discharged by the payment of £368,474.15 by Mr Kenny on 5 May 1988.

Whilst some of the interrogatories which require information (as distinct from admissions) relate to the issues raised in the pleadings (and are therefore allowable) I think by far the greatest number of these relate to information which the plaintiffs seek so as to obtain evidence for the purpose of proving their case against the defendants and as such liberty to deliver them should not be granted.

As to the interrogatories which seek admissions I draw attention to paragraph 9 of the affidavit sworn by Mr McAuley on 7 October 1993 in which he states ‘a considerable number of these interrogatories deal with the acknowledgement of documents, the acknowledgement of signatures to documents and the acceptance that documents were sent by a particular defendant or received in turn by a particular defendant’. Subject to the qualifications which I will mention in a moment interrogatories seeking admissions of these facts may be allowable, but it seems to me that the admissions sought by the plaintiffs go, in a number of instances, beyond the admission of documents and signatures to documents but seek evidence about the documents and admissions about the facts surrounding the documents. Interrogatories which fall into this class may not be allowable as they may relate to the evidence to be adduced and not to the issue raised in the pleadings.

It seems to me that when the party interrogating is seeking admissions from an opposing party then he should first either informally by letter or under O. 32, rr. 1–9 request them to be made. If admissions are refused then an application under O. 31 may be brought. In considering whether it is fair to ask the interrogated party to make the admissions the court will have to consider whether there are any special features of the case which might produce unfairness. In most cases where the admissions are merely for the purpose formally to prove documents which have been identified in an affidavit of discovery and are in the possession and power of the party interrogated the court will grant the order because to refuse it will not only add unnecessary costs but also bring about a possible injustice as an interrogating party may be required to call the deponent (who may be a vital witness in the case) at the trial to prove orally the relevant documents and thus deprive himself of the right to cross-examine the witness.

In the light of the above considerations I can summarise my conclusions as follows:

(1) A considerable number of the interrogatories are not allowable. Rather than attempt to identify those that fall within the scope of the rules I think the relief claimed should be refused but liberty given to re-apply in the light of the views I have expressed.

(2) Interrogatories which seek admissions as to the existence of documents and signatures to documents identified in discovery documents will normally be allowed, unless there are special reasons why in the interest of justice an order should not be made.

(3) Interrogatories which seek admissions about the facts surrounding documents identified in discovery affidavits must relate to the issues raised in the pleadings and cannot be used as a means to prove the interrogating party’s case.

(4) Interrogatories which seek information must, likewise, relate to the issues raised in the pleadings and not to the evidence to be adduced in the case.

(5) 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.

Finally, it was submitted that liberty should be given to deliver interrogatories in relation to transactions pre-dating those which are the subject matter of claims herein. For the reasons already given I do not think that such an order should be made, as the interrogatories do not relate to facts relating to issues raised in the pleadings.

Bula Ltd and Ors v Tara Mines Ltd and Ors

[1995] 1 ILRM 401 Lynch J

This case commenced by the issue of a plenary summons on 17 November 1986, that is to say, just eight years ago. Since then there have been so many interlocutory applications to the High Court and appeals therefrom to the Supreme Court that they far exceed in number anything that has occurred in any other case before our courts that I am aware of.

What I have to rule on now is an application by the first, second, fifth and sixth plaintiffs for liberty to deliver a very large number of interrogatories for answer by the first and second defendants (Tara and Outokumpu Oy) and by the fifteenth and sixteenth defendants (the Minister and Mr O’Connell collectively referred to as the State). This application was originally moved before Murphy J on 29 November 1993, at a time when the trial was due to commence on 7 December 1993. I have had the benefit of reading a transcript of the proceedings before Murphy J and his ruling thereon and I note that he declined to accede to the application at that time on the basis that it was quite unfair to expect the defendants to answer extensive interrogatories when they were fully preoccupied with preparing for the trial. Neither did he refuse the application but rather adjourned it to the trial judge who is myself.

There was one week’s delay in the trial commencing before me which it did on 14 December 1993, when the motion for interrogatories was not then moved. The trial continued before me until 21 January 1994, when it was adjourned to enable some form of other proceedings involving some of the parties to be litigated before another judge and the trial did not resume before me until 4 October 1994. In the meantime in July 1994 an application had been made by counsel for the plaintiffs to me to fix a date for hearing the application for interrogatories and I indicated that as the case was then still in the process of being opened to me that process would have to be completed before I would take up the hearing of this application for interrogatories. The opening of the case concluded or perhaps I should say more or less concluded on Thursday afternoon, 3 November 1994 and counsel for the first, second, fifth and sixth plaintiffs then moved this application for interrogatories. The submissions of counsel for the parties continued until Thursday, 10 November 1994 and I reserved my decision until today which I now deliver.

The interrogatories as originally drafted ran to 210 questions as against Tara and 11 as against Outokumpu Oy and 194 as against the minister and 64 as against Mr O’Connell. As counsel for the plaintiffs argued the matter I wondered at one stage whether the plaintiffs aimed to try to establish their case without calling as a witness to give oral evidence the sixth plaintiff who was at all material times managing director of the first plaintiff but I was assured that this was not so. It is nevertheless worth emphasising that as these are plenary proceedings commenced by plenary summons the primary manner of proving disputed facts is by oral evidence. See O. 1, r. 2; O. 39, rr. 1 and 23 of the Rules of the Superior Courts. The use of affidavit evidence on the trial as distinct from interlocutory applications is exceptional and usually requires the leave of the court and indeed interrogatory evidence itself is in this category since interrogatories cannot be delivered without leave first being obtained from the court.

The submissions
Counsel for the first, second, fifth and sixth plaintiffs submitted that the jurisdiction of the court to make orders in procedural matters was very wide and that the Rules of Court should be given a liberal interpretation and not allowed to inhibit the court from permitting interrogatories in this case because they were necessary and appropriate. He referred to the following authorities: Northern Bank Finance Corporation Ltd v. Charlton, High Court 1975 No. 2819 (Finlay P) 26 May 1977; Marriott v. Chamberlain (1886) 17 QBD 154 Halsbury , 3rd ed., Vol. 12, pargraph 86 et seq and 4th ed., Vol. 13, paragraph 100 et seq ; J. & L. Goodbody Ltd v. Clyde Shipping Co. Ltd, Supreme Court 1966 No. 65, 9 May 1967 and Keating (a Minor) v. Healy, Supreme Court, 17 June 1964.

Counsel for Tara and Outokumpu Oy submitted that it had not been shown that it was necessary to deliver the interrogatories as against his clients especially in view of the vast discovery of documents made by his clients and also the very extensive admissions made by his clients and to neither of which any reference whatever had been made by counsel for the plaintiffs. He pointed out that counsel for the plaintiffs had given no indication of what witnesses he would be calling or what witnesses could be dispensed with if the interrogatories sought to be delivered were allowed. He submitted that the proposed interrogatories were impermissible in form and substance and were oppressive and should be disallowed in their entirety.

In support of his submissions he referred to the following authorities: O. 31, rr. 1, 2 and 7 of the Rules of the Superior Courts; the transcript of the ruling of Murphy J on 29 November 1993 adjourning this application to the trial judge; Mercantile Credit Co. of Ireland Ltd v. James Heelan [1994] 1 ILRM 406; the White Book (1993 Edition) O. 26, p. 486 et seq ; Rofe v. Kevorkian [1936] 2 All ER 1334; American Flange and Manufacturing Co. Inc. v. Rheem (Australia) Pty Ltd (1965) NSWR 193 and Bula Ltd v. Tara Mines Ltd [1987] IR 85.

Counsel for the State supported the submissions of counsel for Tara and Outokumpu Oy and further submitted that the only reason advanced by counsel for the plaintiffs for the requirement of interrogatories in this case is the complexity of the case. Moreover, he submitted what the interrogatories mostly seek is information as to opinions and surrounding evidence rather than facts and such interrogatories are not permissible. He referred to O. 31 of the Rules of the Superior Courts, a judgment of the Supreme Court in this case delivered by O’Flaherty J on 15 June 1993 ([1994] 1 ILRM 111), a further unreported judgment of the Supreme Court in this case delivered by Finlay CJ on 11 October 1993 and an unreported judgment in this case of Keane J delivered 22 October 1993.

Conclusions
As I understand the law the basic purpose of interrogatories is to avoid injustice where only one party has knowledge and the ability conveniently to prove facts which are important to be established in aid of the opposing party’s case, such opposing party not having such knowledge nor the ability to prove the facts either at all or without undue difficulty. O. 31, r. 2 of the Rules of the Superior Courts emphasises that:

Leave shall be given as to such only of the interrogatories as shall be considered necessary either for disposing fairly of the cause or matter or for saving costs.

It is worth noting that this admonition appears three times in O. 31 namely at r. 2 as quoted above, r. 12(3) and r. 18(2).

Interrogatories to be allowable must be as to facts in issue or facts reasonably relevant to establish facts in issue. Interrogatories as to mere evidence as distinct from facts or as to opinions or matters of law such as the meaning or effect of documents or statements or conduct are not permissible. Nor is it appropriate that unnecessary interrogatories should be put such as to facts within the knowledge of and readily capable of proof by the interrogating parties.

In this case the notice of motion for the interrogatories was served on 24 November 1993, for hearing on 29 November 1993, and was heard on the latter date by Murphy J as already mentioned. By the time the motion came to be moved before me on 3 November 1994, counsel for the plaintiffs had pruned some 60–70 questions from both sets of interrogatories which nevertheless remained very numerous. What does not appear to have been done, however, was to take account of the enormous discovery of documents made by all the defendants nor the extensive admissions of documents and facts by the

On 16 December 1993, the first fourteen defendants by letter expressly admitted a vast range of documents and also that:

Furthermore, these documents shall be prima facie evidence of their contents insofar as they record statements made by any servant or agent of the first or second defendant.

On 19 October 1994, similar admissions were made by the said defendants in relation to further extensive documentation known both as FBD 3 and alternatively FBD 4.

On 6 January 1994, the State agreed to admit a very extensive range of documents as requested by the plaintiffs in their notice to admit of 2 December 1993, and at the hearing of the application for interrogatories on the last day thereof, 10 November 1994, an addendum corresponding to that of the other defendants was agreed namely:

These documents shall be prima facie evidence of their contents insofar as they record statements made by any servant or agent of the fifteenth or sixteenth defendants. (See transcript volume 31, p. 16).

It would appear that no account was taken of the admissions made in December 1993 on behalf of Tara and Outokumpu Oy and in January 1994 on behalf of the State and neither was any account taken of the vast discovery of documents made by all the defendants at the insistence of the plaintiffs when the plaintiffs were settling and/or pruning the interrogatories before the matter was moved before me commencing on 3 November 1994. In these circumstances it is not surprising that a very large number of the interrogatories as against Tara and Outokumpu Oy and a large though somewhat lesser number as against the State are and were quite unnecessary. Others are impermissible for vagueness or for asking for opinions or evidence as distinct from facts. In these circumstances it would seem that what was said by Myers J in the American Flange case in New South Wales at p. 196 of the report could be applied by me to the applications for interrogatories in this case, namely:

It was established under the earlier English rules that interrogatories which were prolix and oppressive or unnecessary could be disallowed as a whole, even though some of them were proper, and that the court was not required to go through interrogatories of that kind and ascertain which were admissible and which were not. It was also established that the court was entitled to come to the conclusion that interrogatories were of the kind specified on a general view of the interrogatories and indeed that the mere obligation of the opposite party and the court to go through the interrogatories and pick out from a large number that were improper the comparative few that were allowable, was itself unreasonable and itself could constitute oppressiveness. It has been contended that that principle does not any longer apply because the English rules have been altered. But the Annual Practice for 1965 and Halsbury’s Laws of England at the page to which I have earlier referred treat the practice as still being observed in England notwithstanding the alteration of the rules. It is too within my own personal knowledge that the practice established by the earlier cases has always been followed in this Court.

Notwithstanding the foregoing authority I am anxious that this case should continue to a conclusion without any further interruptions from interlocutory type applications and moreover I am most conscious of the costs involved in an application for leave to deliver the interrogatories which occupied some four and a half days of court time. In these circumstances notwithstanding the dictum of Myers J I do not wish that those costs should be thrown away and I have therefore gone through the interrogatories with a view to deciding whether any, and if so, which ought to be allowed.

I have decided to allow some of the interrogatories sought to be delivered to Tara and to Outokumpu Oy and some also of those sought to be delivered to the minister. In so deciding however I want emphatically to adopt what Murphy J said in the last paragraph of his judgment in relation to an earlier interlocutory application in this case which is to be found at [1987] IR 85 and the passage to which I refer is at p. 94, namely:

Lastly, I would emphasise that the making of an order of this nature does not, as the defendants appear to apprehend, lend credence, respect or support of any description to the plaintiffs’ claim. I regard this procedural relief as no more than ancillary to the institution of the proceedings themselves a step which invokes the order of the Chief Justice but without any more implicit approbation by him of the cause of action than there is by me.

I allow as against Tara the following interrogatories set out in the first schedule to the plaintiffs’ notice of motion dated 24 November 1993, namely:

20 and 21 (substituting for the words ‘at certain times’ the words ‘from January 1976 to April 1978’)

31, 33, 45 (omitting the words ‘that it was a term of the boundary mining agreement’).

74, 75, 76, 77, 78, 79 (substituting the word ‘stated’ for the words ‘represented to’ in numbers 77 to 79).

83, 93, 94, 95, 96, 97, 104, 105, 106, 165, 168, 179, 180, 181, 182, 183, 184, 185, 186, 202, 203, 205, 206, 207.

I allow as against Outokumpu Oy the interrogatories set out in the second schedule to the plaintiffs’ notice of motion save and except numbers 1, 10 and 11.

I allow as against the minister the following interrogatories set out in the first schedule to the plaintiffs’ notice of motion of 24 November 1993 against the State:

7 (excluding ‘on behalf of Tara’).

21, 28, 29, 30, 31, 32, 33, 37, 42, 44, 45, 46, 47, 48, 49, 50, 60, 62 (inserting ‘November’ before 1984), 63, 64, 74 (inserting ‘March’ before 1985), 83, 87, 88, 92, 93, 94, 96, 97, 98, 99, 100, 101, 103, 104, 105, 106, 107, 108, 110, 112, 115, 116, 117, 119, 121, 123, 145, 146, 147, 168, 169, 170, 172, 174, 175, 176, 177, 180 and 181.

I disallow all the interrogatories in the second schedule as against Mr O’Connell.

The plaintiffs should prepare fresh lists of interrogatories numbered from 1 onwards with the former or old numbers in brackets to assist cross reference. Answers to the interrogatories should be delivered not later than three weeks after the receipt of them and should be sworn by the secretary of Tara and the secretary of Outokumpu Oy and the secretary of the minister’s department or other proper officer to be nominated by the minister.

 

Leahy v Southern Health Board

, unreported, Master of the High Court, April 20, 2005

DECISION OF THE MASTER OF THE HIGH COURT 20TH APRIL 2005

This is an application by the plaintiff for leave to deliver sixty two interrogatories on the defendant. It is misconceived.

Most practitioners are now reasonably familiar with the requirement that, for the purposes of a Discovery application, circumstances which have created an evidential deficit for the applicant should be deposed to. The Court needs to have material before it to enable it to judge whether discovery is necessary to secure that the litigation proceeds fairly. Sometimes – rarely, it must be said – that material is self evident from the pleadings. In other cases – most cases in fact – the reason discovery is being sought needs to set out on affidavit.

Ensuring fair litigation is also the primary yardstick to be applied in applications for interrogatories. Requiring the respondent to depose to facts in advance of the trial is a patently unfair departure from the standard time honoured mode of trial. To persuade the Court to make such an order an applicant must establish, on affidavit, circumstances of a sort which occur only rarely, an exception to the pattern of events generally found in litigation. The terms “special exigency” has been employed to describe such circumstances.

While an applicant may occasionally experience some little difficulty in persuading the Court to allow him access to his opponents documents to enable him to find a missing piece of the factual jigsaw, this difficulty will be as nothing compared to the mountain he must climb to persuade the Court that a “special exigency” exists which requires that, in fairness to him, his opponent should be ordered to go into evidence before the trial of the action.

A special exigency will almost never be apparent on the face of the pleadings.

This case is brought by the plaintiff because he fell in Cork University Hospital on 9th July 1998 and sustained a broken nose and a laceration to the left side of his forehead. The circumstances of the fall are not set out in the Statement of Claim, not even, as so often happen, in the particulars of negligence. But it is there we find two particulars, namely “failing to diagnose adequately or . . . provide adequate treatment in respect of the injuries caused to the plaintiff” which are out of place and relate to a different action not brought in these proceedings: this case is about the fall, not the treatment afterwards. The plaintiff’s solicitor, or particulars furnished 14th June 2000, inconsistently asserts that the plaintiff “is 66 years of age and was born on 1st May 1944”. The defendant pleads that the plaintiff had consumed a quantity of alcohol which “precipitated his collapse at home and subsequent weakness” and that his fall was “due to an episode of generalized seizure”.

There is an understandable misconception about interrogatories. Because the procedure involves the swearing of an affidavit by the respondent setting out facts which go towards building and completing the applicants case, the purpose of the exercise is thought to be to secure admissions. It is not. It is about information. Occasionally the information is of such a nature as to be unambiguously supportive of the applicant’s case but that is not the basis on which the interrogatory ought to be sought or ordered. Interrogatories are about information. Occasionally, but only occasionally, that information will amount to an admission, but interrogatories to secure, as such, an admission of a material fact in issue will be ordered only in truly exceptional circumstances the like of which it is impossible to speculate on or postulate.

The case law is clear cut. The information being sought by the applicant must be as to facts which relate to facts which are in issue. The respondent cannot be asked anything other than whether the specified fact is true or false. He cannot be asked what his source of knowledge is for his answer.

Of the interrogatories suggested by the plaintiff in this case thirteen are requests for names and addresses. These are clearly inappropriate. Six more ask whether named or unnamed persons witnessed the fall. This is not a fact which relates to a fact in issue (in the technical sense of being probative thereof): it is a query as to whether there is other evidence of the fall, and is then followed by the query about the address of such witness.

9. Did not any patients witness the Plaintiff’s fall?
10. It the answer to the 9th interrogatory is yes, what are the names and addresses of those persons?
11. Did not any other persons witness the Plaintiff’s fall?
12. If the answer to the 11th interrogatory is yes, what are the names and addresses of those persons?
13. Was not there any other patients in the A & E Department at the time of the Plaintiff’s fall on the 9th Day of July 1998?
14. I the answer to the 13th interrogatory is yes, what are the names and addresses of those persons?
Then there are some questions about the recording of the incident, together with the following

14(sic) Did not a member of the hospital staff (medical, nursing or otherwise discover that the Plaintiff had fallen?
19. Was not a doctor in charge of the Plaintiff’s care at the Accident and Emergency Department of Cork University Hospital?
There are five questions about the defendant’s knowledge of the plaintiff’s history, (including two “why not” questions (22 and 24), followed by a long series of questions about the plaintiff’s bed or trolley. 36, 37.

Questions 41 to 44 are missing.

From 45 onwards are eight questions about post accident treatment, and finally, at 60 to 62, three questions about staff shortages. A total of fifty six questions.

Interrogatories must be formulated in such a way as to permit an answer which is a simple affirmative confirmation or the opposite. “Did not. . . ?”

“has not . . .?” etc. is the format specified in the Rules. “Why not?” is not acceptable. Nor is “where is. . .” or “who has . . .”or “what is . . .”? And certainly not “what precautions . . .”?

Of course, the “did not, was not . . .”? test is nothing but a first order test. It is a test of form and not of substance. Satisfying the test is neither a sufficient nor a necessary condition for a successful application. But as a first test, it is a useful indicator as to problems with the substance of the interrogatory. Likely as not, if the interrogatory cannot be answered with a “yes” or “no” the substance of the question is likely to wide of the mark. For example “if not, why not . . .”? is likely, on closer scrutiny, to be query seeking to fish out secondary (therefore, immaterial) facts. And the question “who . . .”? is one seeking the names of potential witnesses, enquiring, in other words, as to evidence rather than seeking factual information. Closer scrutiny may reveal the essence of questions, however formulated, as concerning inferences opinions or the evidence of third parties, none of which is appropriate as the subject matter of an interrogatory. Factual information alone may be sought and only factual information directly probative of material facts in dispute. The highest quality evidence of such facts is, of course, an admission. Admissions are, in that sense, at the extreme end of the spectrum of relevant information. But interrogatories seeking admissions of facts directly and clearly in issue on the pleadings will not be permitted.

There appear to me to be only two interrogatories, properly framed, and concerning facts which are related to material facts in dispute and these are:

21. Was not the Doctor in charge of the Plaintiff’s care, at the A & E Department of Cork University Hospital, aware that t he Plaintiff had a history of collapse?
23. Was not the Doctor in charge of the Plaintiff’s care, at the A & E Department of Cork University Hospital, aware that the Plaintiff had a fluctuating level of consciousness?
But looking again at the Defence we see that the defendant makes a plea which cannot be advanced by it unless it intends to offer evidence of the plaintiff’s weakness and prior collapse “at home”. I am of the view that, such being the Defendant’s stance, the two interrogatories are concerned with a fact which is effectively not in issue.

Even if I am wrong in rejecting the interrogatories on the technical basis above outlined it would be open to the Court to reject the application out of hand because of the complete failure to establish the existence of a special exigency. In his grounding affidavit the solicitor for the plaintiff says that he sought voluntary discovery and received certain documents by way of response. It should be noted in 1998 the Defendant furnished a full copy of all Cork Hospital notes to the plaintiff’s solicitor. (Par. 6). He goes on, at paragraph 9, to say –

“The Defendant has the sole knowledge as to the circumstances, background and nature of the accident herein given the condition and nature of the plaintiff at the time of the accident. I say that it is not revealed in the notes and records that I have received from the Defendant any information as to the circumstances of the accident and I say that this information must be within the remit of the Defendant.”
So the plaintiff himself has no knowledge of the material facts, has he not? In making this averment, the plaintiff’s solicitor is in effect admitting that his client was drunk and unable to know what he was doing. Something of an “own goal” perhaps?

The term “exigency” means “an urgent need”. So says the Oxford dictionary. In the context of litigation the “urgency” refers to the immediacy of the need, the fact that the information is needed ahead of the trial. The information will of course normally be available on cross examination during the trial, but that will be, for the applicant, too late: the trial will be unfair.

In Croften Properties Limited – v – Genport Limited 2001 McCracken J. re worded the test by asking whether “establishing these facts by way of interrogatories is in any way more unjust or prejudiced to the respondent than to call witnesses . . . at the trial”.

In Woodfab Limited – v – Collte Teo 200 IR Shanley J. noted that the test might be described (as had been done by Bingham M.R. in Hall – v – Sevalco Limited TLR. 27.3.96) as one of “stringent necessity”, and quoted the Master’s dictum that:-

“It could not be necessary to interrogate to obtain information or admissions which were or were likely to be contained in pleadings, medical discoverable documents or witness statements unless, exceptionally, a clear litigious purpose would be served by obtaining such information or admissions on affidavit”.
Miss Justice Laffoy, in McCole – v – The Blood Transfusion Service Board employed the concept of “clear litigious purpose at this juncture”, and applied the test as to whether interrogatories were “essential for the proper presentation of the applicants case that the information be furnished at this juncture”, citing with approval Det Danske – v – KDM 1994 2 Lloyd’s Reports 534, 537:-

“essential . . . in the sense that if the matter is left until cross examination at the trial that party will or probably will be irremediably prejudiced in his conduct of the trial or the trail may be unduly interrupted or otherwise disorganised by the later emergence of the information”.
Note that in respect of interrogatories 31, 32, 33 in the McCole case, Miss Justice Laffoy accepted the respondents submission that some were not necessary in that sense, saying that:

“It seems to me that the matters the subject of the interrogatories are matters to be dealt with in oral evidence by the plaintiffs expert witnesses and through cross examination of the witnesses of the defendant at the trail of the action”.
Returning to the source of the test special exigency, namely Costello J. (as he then was) in Mercantile Credit Co. Limited – v – Heelan 1994 ILRM regard must be had to the “common example” which he set out in the judgment, as follows (p. 410)-

“In a road traffic accident an injured plaintiff has to establish his claim by oral evidence and will not normally be allowed to deliver interrogatories for this purpose. But if the injuries have caused a loss of memory so that a plaintiff cannot recall the accident and there are no witness interrogatories will be allowed and affidavit evidence permitted relating to the issue of negligence and damages so that justice may be done”.
In the instant case, the Court really has no clear evidence as to what the plaintiff can recall of his admission to hospital and his fall. Surely he can give evidence that he was uninjured when he arrive and injured when he left? Surely (the defendant’s denial notwithstanding) the Hospital’s records record his being treated for the injuries he complains of, and do not record his as complaining of such injuries on his arrival? Surely the Court can, by inference if necessary, conclude that the defendant did not take reasonable care for the plaintiff?

In this application, the plaintiff has not established that he cannot prove his case at trial unless he now gets the information he seeks by way of interrogatories. There is no “special exigencies” of the sort envisaged by Costello J., Laffoy J., Shanley J. or McCracken J.

I refuse the application.

McCabe v Irish Life Assurance Plc

[2015] IECA 239

Judgment of Mr. Justice Kelly delivered on the 9th day of November 2015
Introduction
1. It is almost 50 years since the Supreme Court, in an unreported judgment of the 9th May, 1967, in the case of J. & LS. Goodbody Limited v. Clyde Shipping Company Limited encouraged a greater use of interrogatories in High Court litigation. Walsh J., speaking for the court, said this:-

“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 because 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.”
2. That judgment of the Supreme Court is largely forgotten and the exhortation contained in it is for the most part ignored.
3. 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.

4. Under the provisions of O. 31, leave of the court is required for the delivery of interrogatories except in cases alleging fraud or breach of trust. When the Commercial Court was set up in 2004, its rules permitted parties in commercial list litigation to deliver interrogatories without leave of the court. That procedural change gave rise to a much more extensive use of interrogatories in Commercial Court proceedings. They have been beneficial in achieving the desired results.

5. Since 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.

6. In that decision the Supreme Court made it clear 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 it 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.”
7. Those observations also 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. That may in part explain why they are used so infrequently. It is clear from the observations of Walsh J. that robust questions may be posed on a much wider basis than is generally appreciated.
8. Having made these observations, I turn to the issues which arise on this appeal from a refusal by Barr J. in the High Court to permit the delivery of interrogatories in this case.
This case
9. These proceedings were commenced by plenary summons issued on the 15th April, 2011. The principal relief which is sought is payment to the plaintiffs of a benefit of €250,000 on foot of a policy of life assurance entered into in or about November 2005, in respect of which one of the lives insured was Marie McCabe (the deceased). The plaintiffs are the widower and daughter respectively of the deceased. The deceased died on the 26th August, 2009.

10. The defendant contends that the contract of insurance was one of utmost good faith and that the deceased was under a duty to disclose to it all material facts. In breach of that duty it is contended that the deceased did not disclose the following facts, each of which was a material fact of which she was aware, but the defendant was unaware. The facts alleged at para. 9 of the defence are as follows:-

“(a) On the 10th May, 1984, the deceased was admitted to Adelaide and Meath Hospital, Tallaght, Dublin 24, under the care of Dr. Gerald H. Tomkin, Consultant Physician. After admission the deceased underwent treatment for possible anorexia nervosa and was discharged on the 21st May, 1984.
(b) In 1995 the deceased was admitted to Cavan General Hospital following an overdose and was referred to Dr. Vincent Russell, Consultant Psychiatrist.

(c) On the 21st December, 2000, the deceased was noted by her GP, Dr. William Hanly, to have a history of alcohol dependency.

(d) On the 7th February, 2001, the deceased was admitted to Cavan General Hospital following a head injury sustained while under the influence of alcohol.

(e) On the 23rd February, 2001, the deceased attended Dr. McCaffrey, Baileborough Clinic, regarding alcohol abuse and was prescribed Librium.

(f) In October 2001, the deceased was admitted to Aiséirí Treatment Centre, Cahir, Co. Tipperary and completed a 30 day in-patient detoxification programme.

(g) From 2000 until September 2005, the deceased remained under the care of Dr. Vincent Russell, Consultant Psychiatrist, in relation to a long standing history of psychiatric problems, and was prescribed medications on numerous occasions during this period, including Seroxat, Xanax, Paroxetine, Dalmane, Lexotan, Zimovane, Efexor.”

These particulars are direct quotations from the defence and counterclaim of the defendant.
11. Furthermore, the defendant pleads that the deceased completed or signed a proposal form in which she failed to disclose the following facts each of which was material and of which she was aware, but the defendant was not.

“(a) The deceased incorrectly replied ‘No’ to the question ‘Are you currently unwell or do you suffer from any physical defect or is there any ailment or disease to which you have a tendency?’
(b) The deceased incorrectly replied ‘No’ to the question, ‘Are you currently taking prescribed drugs, medicines, tablets or other treatment or have you taken such a course lasting more than two weeks within the past year?’

(c) The deceased incorrectly replied ‘No’ to the question, ‘Have you been referred by a doctor to a specialist at any hospital or clinic within the past five years or have you seen such a specialist in the past five years?’

(d) The deceased incorrectly replied ‘No’ to the question, ‘Have you ever suffered from or had treatment for cancer or other growth or tumour, multiple sclerosis, epilepsy or blackouts, paralysis or numbness, mental or nervous disorder, double vision or eye disorder, ear disorder, asthma or any lung disorder or liver, stomach or bowel disorder?’”

12. The reply to defence and counterclaim denies that the deceased acted in breach of duty to disclose all material facts. The reply furthermore contends that if the deceased failed to disclose the alleged material facts that did not constitute material non disclosure. Finally, the plaintiffs say that they await strict proof of the completion of the proposal form by the deceased. It is contended that the proposal form was completed by Danske Bank, its servants or agents, who at all material times acted as broker and agent for the first defendant. Danske Bank has been joined as a third party to this litigation.
Preparation for trial
13. In an effort to narrow the issues in dispute between the parties, thus shortening the trial and saving costs, the defendant on the 12th November, 2013, served a notice to admit facts on the plaintiffs. The facts which they sought to admit were those set out in paras. (a) through (g), of para. 9 of the defence which I have already quoted in full.

14. It took six months for the plaintiffs solicitors to reply to that notice. The reply was a bare refusal to admit the facts. No attempt was made to explain why that stance was being taken.

15. Faced with this refusal, the defendant’s solicitors wrote enclosing draft interrogatories dealing with the same issues that were sought to be dealt with in the notice to admit facts. This request elicited nothing more than a letter of acknowledgment of receipt of the request. Again no attempt was made on the part of the plaintiffs’ solicitors to deal with the issue.

16. Faced with this failure to engage by the plaintiffs solicitors, a motion was brought seeking leave to deliver the interrogatories in question. That motion was heard by Barr J. and resulted in the judgment of the 21st April, 2015, which is the subject of this appeal.

17. It is to be noted that no replying affidavit was sworn in response to the affidavit which grounded the application for leave to deliver the interrogatories.
The interrogatories
18. The following are the interrogatories which were sought to be delivered:-

1. “Was not the late Marie McCabe (the deceased), on the 10th May, 1984, admitted to Adelaide and Meath Hospital, Tallaght, Dublin 24 under the care of Dr. Gerald H. Tomkin, Consultant Physician?”
2. “Did not the deceased, after admission to the Adelaide and Meath Hospital on the said date, undergo treatment for possible anorexia nervosa before being discharged on the 21st May, 1984?”

3. “Was not the deceased admitted to Cavan General Hospital in 1995 following an overdose and referred to Dr. Vincent Russell, Consultant Psychiatrist?”

4. “Did not the deceased have a history of alcohol dependency prior to the completion of the proposal form for the policy of insurance the subject of these proceedings?”

5. “Was not the deceased noted by her GP, Dr. William Hanly on the 21st December, 2000, to have a history of alcohol dependency?”

6. “Was not the deceased admitted to Cavan General Hospital on the 7th February, 2001, following a head injury sustained while under the influence of alcohol?”

7. “Did the deceased not attend Dr. McCaffrey, Baileborough, Clinic, on the 23rd February, 2001, regarding alcohol abuse, who prescribed Librium?”

8. “Did not (sic) attend Dr. McCaffrey prescribed (sic) Librium in respect of the deceased’s alcohol abuse?”

9. “Was not the deceased admitted to the Aiséirí Treatment Centre, Cahir, Co. Tipperary in October 2001?”

10. “Did not the deceased complete a 30 day inpatient detoxification programme in the Aiséirí Treatment centre at that time?”

11. “Did not the deceased between 2000 and September 2005, remain under the care of Dr. Vincent Russell, Consultant Psychiatrist?”

12. “Was not her long standing history of psychiatric problems the reason for her remaining under the care of Dr. Vincent Russell in this period?”

13. “Was not the deceased prescribed the following medications on numerous occasions between 2000 and September 2005, – Seroxat, Xanax, Paroxetine, Dalmane, Lexotan, Zimovane, Efexor.?”

19. The interrogatories were sought to be delivered to and answered by both plaintiffs.
20. The High Court refused permission to deliver any of the interrogatories.
The High Court judgment
21. The basis for the refusal to permit delivery of the interrogatories is set forth in the conclusions reached by the judge. He said:-

“I am satisfied that in the circumstances of this case, it would be unfair to order the plaintiffs to furnish answers on affidavit to the questions raised in the interrogatories. I am of the view that the plaintiffs are correct when they say that the questions posed relating to the deceased’s medical conditions and treatment during her lifetime, do not lend themselves to simple “yes” or “no” answers. To force them to furnish such answers would be an injustice as the whole story would not be told.
The issue of the deceased’s prior medical conditions and her treatment therefore, are going to be crucial issues at the trial of the action. It is not unreasonable that the defendants, who are resisting payment out under the contracts (sic) of life assurance on grounds of material non-disclosure on the part of the deceased, should prove this fact by oral evidence at the trial of the action. Furthermore, justice requires that the plaintiffs should be given the opportunity to test the evidence of the doctors by means of cross examination. In the circumstances, I refuse leave to issue interrogatories in this case.”

Order 31
22. Order 31, rules 1 to 11 inclusive, deal with the delivery of interrogatories.
23. As I have already pointed out, save in cases where relief is sought in respect of fraud or breach of trust, leave of the court is required before interrogatories may be delivered.

24. In deciding upon such an application the court (pursuant to O. 31, r. 2):

“Shall take into account any offer which may be made by the party sought to be interrogated, to deliver particulars, or to make admissions, or to produce documents, relating to any matter in question. Leave shall be given as to such only of the interrogatories as shall be considered necessary either for disposing fairly of the cause or matter or for saving costs.”
25. In the present case the plaintiffs solicitors failed to engage at all when asked to admit relevant facts or to respond to the draft interrogatories. Not merely was no offer made by the plaintiffs’ solicitors, they simply refused to cooperate at all. That, in my view, is an unacceptable approach to the conduct of litigation. The court is entitled to expect that solicitors involved in the conduct of litigation behave reasonably in cooperating with their opposite number to progress the litigation to the mutual benefit of their respective clients. As a result of this omission there was no offer which the court could take into account pursuant to the provisions of O. 31, r. 2.
26. Order 31, r. 6, provides that any objection to answering any one or more of the several interrogatories on the ground that it is or they are scandalous or irrelevant, or not bona fide for the purpose of the cause of matter, or that the matters inquired into are not sufficiently material at that stage, or any other ground, may be taken in the affidavit in answer. Such objections would normally of course fall to be dealt with on the hearing of the motion seeking leave to deliver the interrogatories. But even thereafter such objections can be taken in the affidavit in answer.

27. Under O. 31, r. 10, the sufficiency or otherwise of an affidavit objected to as an insufficient response to interrogatories is to be determined by the court on motion.

28. Under O. 31, r. 11, if a person omits to answer, or answers insufficiently, the interrogating party may apply to the Court for an order requiring him to answer, or to answer further, as the case may be; and he may be directed to answer or answer further, either by affidavit or by viva voce examination, as the Court may direct.
Discussion
29. As is plain from the text of the interrogatories sought to be delivered, they seek to elicit a sworn response from the plaintiffs on whether the deceased required the medical interventions which are contended for at para. 9 of the defence and counterclaim. This sworn response may be used in evidence at the trial.

30. The facts which are pleaded in the defence on this topic relate to medical attention given by a minimum of four different doctors over a period of in excess of 20 years. Four separate medical facilities are involved. It is quite clear that if the defendant is required to formally prove the deceased’s medical history it will involve the attendance of all of these doctors and perhaps officials from the various facilities, thus incurring significant costs and adding to the length of the trial.

31. Apart from the Goodbody case which I mentioned at the outset of this judgment, the topic of interrogatories has attracted the attention of the Superior Courts on a number of occasions in relatively recent years. I make mention of some of these cases as assisting in an analysis of the judgment under appeal.

32. In Woodfab Limited v. Coillte Teoranta [2000] 1 IR 20, Shanley J. said:

“It does appear that once the party seeking to deliver interrogatories satisfies the court that such delivery would serve a clear litigious purpose by saving costs or promoting the fair and efficient conduct of the action in question then the court should be prepared to allow the delivery of the interrogatories unless it is satisfied that the delivery and answering of the interrogatories would work an injustice upon the party interrogated.”
33. In Money Markets International Limited v Fanning [2000] 3 I.R. 215, O’Sullivan J. said:-
“The purpose of exhibiting interrogatories is to seek admissions which will become evidence to be relied upon by the interrogating party. They will not prove the entire of that party’s case but will lighten the burden of so doing to the extent that certain elements required to be proved will be established in the replies. I am unable to see, therefore, how admissions about facts ‘cannot be used as a means to prove the interrogating party’s case.’”
34. I am of opinion that the interrogatories sought to be delivered here serve a clear litigious purpose. As a matter of probability they will save significant costs and shorten the trial.
35. I am unable to see how it can be said that requiring the plaintiffs to answer the interrogatories would be either oppressive or unjust. No evidence in support of such a contention was ever placed before the High Court. Indeed it was not even suggested in correspondence since there was in reality no correspondence from the plaintiffs’ solicitors.

36. Whilst I am of the view that the proposed interrogatories require some minor recasting which I deal with later in this judgment, each of them admits of a yes or no answer. Again nothing was put before the court either by way of evidence or in exhibited correspondence to suggest that the plaintiffs are not aware of the answer to these various interrogatories. Counsel did suggest that the daughter of the deceased would be unable to answer some of the questions because they relate to matters which took place either before she was born or when in her infancy. If that be the case it ought to have been dealt with in evidence. In any event these interrogatories are being administered to both plaintiffs and if she is unable to answer some of the questions she can say so and give the reasons for her inability to do so.

37. In the respondents notice it is said that the defendant failed to establish any exigency requiring the delivery of interrogatories. This line of argument was disposed of by Shanley J. in the Woodfab case where he held that the existence of a so called special exigency was no different from the requirement set down in the Rules of the Superior Courts that interrogatories would only be allowed where they were necessary to ensure the fair disposal of the cause or for the reduction of costs.

38. It is clear from the judgment under appeal that the judge refused to permit the delivery of interrogatories in this case solely on the basis that he considered them to be unfair.

39. I infer that in limiting his refusal to that ground the judge was of opinion that the defendants had demonstrated that the delivery of interrogatories were necessary for disposing fairly of the cause or for saving costs. If I am right in that inference I believe the judge was correct in so concluding. I am quite satisfied that the defendants have demonstrated these interrogatories are necessary, particularly from the point of view of saving costs.
Unfairness
40. As the sole basis for refusal by the High Court was alleged unfairness, it is necessary to look at in some detail.

41. First, there is nothing inherently unfair in directing the delivery of interrogatories simply because a claim is being made on foot of an insurance policy which has been avoided for an alleged non disclosure. Such an order was made in the Supreme Court of New South Wales in the case of Stealth Enterprises Australia Pty Limited v. Callidan Insurance Limited [2013] NSW SC 1757. There the defendant successfully submitted that the delivery of interrogatories was necessary to fairly dispose of the issue of non disclosure at the trial of the action.

42. Second, there is not a word of evidence put before the court on the part of the plaintiffs to suggest that there is anything unfair or oppressive in the content of the interrogatories which are sought to be delivered.

43. It has been suggested that the plaintiffs would be required to carry out extensive investigation and research into the medical history of the deceased in order to answer the interrogatories. No evidence was led in the court below to support such an assertion. Nor am I convinced that such is the case. In any event, if the plaintiffs truly do not have such knowledge, then that can be dealt with in the course of the affidavit in answer to the interrogatories.

44. The trial judge was also of the view that requiring the plaintiffs to answer the interrogatories would be an injustice as “the whole story would not be told”. He was also of the view that the plaintiffs should be given an opportunity to test the evidence of the doctors by means of cross examination. But that approach appears to me to miss a crucial point. If the interrogatories are delivered and the plaintiffs accept the accuracy of the facts pleaded by answering the questions posed in the affirmative, the question of whether those facts were sufficient to justify the avoidance of the policy will be a question of law. No further medical evidence will be required. Cross examination of medical witnesses will be of no assistance in that regard. If, on the other hand, the answers to the interrogatories are not as anticipated by the defendants then they will have no option but to call the relevant witnesses to give viva voce evidence. Thus the plaintiffs will be able to cross examine.

45. I am unable to accept that there is anything unjust or oppressive in directing the delivery of these interrogatories.

46. I am of opinion however, that there must be some minor adjustments made to them in order to make the questions posed crystal clear and to enable equally clear answers to be sworn to by the plaintiffs. I set out the amended questions in a schedule to this judgment.

47. In adjusting the questions I have followed the form of question which is regularly put when interrogatories are used in Commercial list cases. The archaic style of framing questions in the negative has long since been abandoned. (See Anglo Irish Bank Corporation Limited v. Browne [2011] IEHC 140).
Decision
48. For the reasons which I have outlined, I am of the view that this appeal ought to be allowed and the order of the High Court be set aside.

Schedule
1. Was the late Marie McCabe (the deceased), on the 19th May, 1984, admitted to the Adelaide and Meath Hospital, Tallaght, Dublin 24, under the care of Dr. Gerald H. Tomkin, consultant Physician?
2. Did the deceased undergo treatment for possible anorexia nervosa before being discharged from that hospital on the 21st May, 1984?

3. Was the deceased admitted to Cavan General Hospital in 1995 and referred to Dr. Vincent Russell, Consultant Psychiatrist?

4. Did the deceased have a history of alcohol dependency prior to the completion of the proposal form for the policy of insurance the subject of these proceedings?

5. Was the deceased noted by her GP Dr. William Hanley, on the 21st December, 2000 to have a history of alcohol dependency?

6. Was the deceased admitted to Cavan General Hospital on the 7th February, 2001, following a head injury sustained whilst under the influence of alcohol?

7. Did the deceased attend Dr. McCaffrey, Baileborough Clinic, on the 23rd February 2001, regarding alcohol abuse?

8. Did Dr. McCaffrey prescribe Librium in respect of the deceased’s alcohol abuse?

9. Was the deceased admitted to Aiséirí Treatment Centre, Cahir, Co. Tipperary, in October 2001?

10. Did the deceased complete an in-patient detoxification programme in the Aiséirí Treatment Centre in or about October 2001?

11. Did the deceased between 2000 and September 2005 remain under the care of Dr. Vincent Russell, Consultant Psychiatrist?

12. Did the deceased remain under the care of Dr. Russell between 2000 and September 2005 because of her psychiatric problems?

13. Between 2000 and September 2005 was the deceased prescribed the following medications

(a) Seroxat,
(b) Xanax,

(c) Paroxetine,

(d) Dalmane,

(e) Lexotan,

(f) Zimovane,

(g) Efexor.?”