Both legal practitioners and the general public alike are very much aware that litigation can be a time consuming and costly exercise, particularly in light of the lengthy delays for the hearing of trials and the subsequent length of time many trials run for. One particular tool favoured by the Courts as a way to combat these issues, is the use of interrogatories. Interrogatories are not “new”. In fact, the Supreme Court was encouraging their use as far back as fifty years ago in J & LS Goodbody Ltd v Clyde Shipping Co Ltd1. However, until recent years, they remained the “Cinderella” of pre-trial procedures.
The new case management rules introduced by Order 63C of the Rules of the Superior Courts (“RSC”) together with the existing rules,2 facilitate the use of interrogatories between parties, and, the evolving body of case law emphasises that objections to interrogatories are becoming more difficult to sustain.
What are Interrogatories and when are they used?
Interrogatories are a series of questions which a litigant can require an opposing party to answer on oath. They can be served by the plaintiff after delivering his Statement of Claim or by the defendant after delivering his Defence and such interrogatories must identify the person(s) required to answer. The two main purposes for raising interrogatories are to obtain information from the opposing party about the facts in dispute and/or to obtain admissions from the opposing party.
Interrogatories were historically phrased as leading questions requiring a yes or no answer. Traditionally, the questions were phrased in the negative (e.g. ‘Did not…?’ ‘has not…?‘ etc,) which often lead to confusion. However, it is now common practice to phrase the questions in the positive (e.g. ‘Did the…?’ ‘Was the…?’ etc.), or negative, and both are acceptable to the Courts. In addition, the Court permits parties to add context to yes or no responses where appropriate and it is now typical for the majority of replies to include clarifying statements.
Leave of the court is required for the delivery of interrogatories in the High Court, save in cases where relief by way of damages is sought on the ground of fraud or breach of trust.3 For cases in the Commercial List of the High Court, interrogatories are delivered without leave, regardless of the nature of the claims.4 Delivery of interrogatories in those circumstances can also occur after receipt of witness statements.
Can you refuse to answer?
Order 31, rule 6 of the RSC provides that an objection to answering one or more interrogatory may be set out in the answering affidavit on the ground that it is “scandalous or irrelevant, or not bona fide for the purpose of the cause or matter, or that the matters inquired into are not sufficiently material at that stage”. Although it is not spelt out in the rule, it would seem that it is not open to a party to refuse to answer interrogatories where the prior leave of the Court has been obtained as the Court has approved the interrogatories.5
It is also open to a party to make a formal application to set aside one or more interrogatory on the ground that it has been exhibited unreasonably or vexatiously, or struck out on the ground that it is prolix , unnecessary or scandalous.6 This application should be made within seven days after service of the interrogatories.
Interrogatories must be answered on Affidavit. If the deponent fails to answer, or answers the interrogatories insufficiently, the party interrogating may apply to Court requiring the party to answer further, either by affidavit or viva voce examination.7 A party who fails to then comply with a Court Order, is also liable to attachment, or at risk of having an action dismissed for want of prosecution or at risk of having a defence struck out.
The way forward
There has been much judicial encouragement of the use of interrogatories. This may be, as Kelly J explained in McCabe v Irish Life8, because of the view that interrogatories “can dispose of issues prior to trial, can lessen the number of witnesses and result in an overall shortening of trials.”
In the recent case of Defender v HSBC9, the Court granted an order to provide further and better replies to interrogatories in complex proceedings arising from a Ponzi-type fraud in the US. The plaintiff was served with 650 interrogatories and raised objections to a significant number on the basis that the questions (1) should have been asked of a different party, (2) related to the interpretation of documents, (3) did not elicit yes/no answers, (4) related to matters of law, (5) related to witness statements and (6) related to a disputed term. In a useful examination of which principles the Court would accept, the Court ruled that interrogatories should be replied to where appropriate when:
- Answers should save on Court time and resources and overall costs in the context of an upcoming lengthy trial;
- Questions related to the subject matter of documentation but did not seek to elicit the plaintiff’s actual interpretation of same;
- Questions did not seek the opposing parties’ interpretation of matters of law;
- Questions seeking clarification of appropriate points raised in parties’ witness statements were permitted in appropriate circumstances as it was possible that a witness may ultimately not give evidence at trial in which case the witness statement would have no evidential value; and
- The query is amendable to a yes/no answer, subjection to additional context if a replying party wished to add that context.
The Courts are now more focused than ever on facilitating the determination of proceedings in a manner which is just, expeditious and likely to minimise costs. Interrogatories are an effective way of achieving this goal. Parties should, therefore, seriously consider engaging with this process and be aware that objections to interrogatories will not be entertained by the Courts.
1 Unreported, Supreme Court, 9th May, 1967
2 Order 31, rules 1-11, Order 31, rule 29 and Order 63A, rule 9.
3 Order 31, rule 1
4 Order 63A, rule 9
5 Delany and McGrath on Civil Procedure, 4th Ed., 2018 at para 12.50
6 Order 31, rule 7.
7 Order 31, rule 11.
8 McCabe v Irish Life Assurance plc IR 346 at p. 356.
9 Defender Ltd v HSBC Institutional Trust Services (Ireland) DAC IEHC 322
Contributed by: Rebecca MacCann
Follow us @WilliamFryLaw
