The Return of Interrogatories - Litigation’s Forgotten Weapon

Civil litigation procedures may wax and wane in fashion over time. As litigation procedures are modified over time to respond to the kinds of disputes courts have to decide (which in turn reflect economic, social and technological change), some become less necessary or useful. Often the solution to a current litigation problem is a modern reinvention of an older procedure, or the reinvigoration of an established procedure which has fallen into disuse. 

In a significant recent judgment1, the Court of Appeal has put the relatively unfashionable litigation weapon of interrogatories back in the spotlight as an important tool, especially for defendants, in narrowing the issues in a case, thereby saving time and cost.

Interrogatories are formal questions a party serves on its opponent as part of the discovery process. The recipient must answer on oath, and the answers may be used at trial. Effectively, one party “interrogates” its opponent’s case, to clarify whether particular facts or allegations are really in dispute. If the answers narrow the issues, especially where pleadings are broad or deliberately ambiguous, interrogatories can reduce the scope of discovery (often a major cost in litigation); the number of necessary witnesses and time spent preparing for and conducting the trial.

Historic Encouragement for use of Interrogatories

Delivering the judgment, Kelly J referred to a 1967 Supreme Court judgment2 where it was said that: “…interrogatories ought to be used more than they are. This procedure and all other pre-trial procedures…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.”

He noted that while leave of the court is generally required to deliver interrogatories, except in cases alleging fraud or breach of trust, the Commercial Court rules permitting parties there to deliver interrogatories without leave had led to a beneficial increase in their use. However, the use of interrogatories had remained relatively limited, as there was a perception that the Irish courts were slow to allow them.

However, the authorities indicated that this perception was wrong. Parties (and by implication their lawyers) appeared to have an unduly restricted view of when interrogatories are permissible, though the Supreme Court had said in 1967 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.

Consideration of the Claim Before the Court

The judgment here involved a claim for payment under a life assurance policy. The defendant insurer resisted the claim on the basis that the deceased had failed to meet the duty of utmost good faith and to disclose all material facts, by not disclosing several identified features of her medical history. The defendant first sought to have these issues surrounding her medical history narrowed by serving a notice to admit certain facts related thereto. The plaintiffs refused to make any admission. The defendant then served draft interrogatories addressing the same matters but the plaintiffs did not engage.

Kelly J considered this lack of engagement significant because in considering an application to permit interrogatories, the Court should consider “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.”

A party could therefore deflect the risk of being required to give sworn answers to interrogatories by taking any of these steps which fairly answered the opponent’s attempt to narrow the issues. Here, the plaintiffs did not attempt to deflect that risk, but instead argued principally that being compelled to swear answers into evidence at that stage was unfair. Fairness is a key element of the test: it has been held that once the court is satisfied that interrogatories will serve a clear litigious purpose by saving costs or promoting the fair and efficient conduct of the action then it should be prepared to allow the interrogatories unless it is satisfied that to do so “ would work an injustice upon the party interrogated.3

Kelly J noted that having to address at trial the issues raised in the interrogatories would involve a number of witnesses and would protract the trial and increase cost. Accordingly, the interrogatories served a clear litigious purpose. He noted that no evidence that the interrogatories would be unfair or oppressive was put before the High Court, and concluded that, with some minor revisions, each proposed interrogatory would admit of a yes or no answer. There was no evidence that the plaintiffs would be required to carry out extensive investigation of the deceased’s medical history in order to answer the interrogatories. The High Court had erred in the view that it would be unfair if the plaintiffs were deprived of the opportunity to test the evidence of the medical practitioners concerned by cross-examination. This was because if the plaintiffs accepted the accuracy of the facts put by the defendant by answering the interrogatories in the affirmative, the question which would arise, i.e. whether those facts were sufficient to justify avoidance of the policy, would be a question of law and would not require medical evidence. If the answers to the interrogatories were in the negative, the defendants would have to call the relevant witnesses to give evidence and they could then be cross-examined.

Unambiguous Judicial Support for the Strategic use of Interrogatories

This judgment is a very clear encouragement from the Court of Appeal to parties to use all of the procedural tools available to reduce the issues at large in litigation in confidence that genuine attempts to do so will be fully supported by the courts. Viewed through the prism of the courts’ modern case management function (to support the conduct of proceedings in a manner which is just, expeditious and likely to minimise costs), traditional concerns that interrogatories might be regarded as unfair by pinning a party to particular evidence on an issue long before trial should now be disregarded. There is unambiguous judicial support for their strategic use where they serve a legitimate litigious purpose of narrowing issues and saving costs. In particular, having regard to costs associated with discovery, it will make sense in appropriate cases to try to narrow issues through interrogatories before discovery is progressed, as there is an opportunity to net down what will really be relevant.

  1. McCabe and another v. Irish Life Assurance plc and another [2015] IECA 239, 9 November 2015
  2. J. & LS. Goodbody Limited v. Clyde Shipping Company Limited; Unreported, 9 May 1967, per Walsh J
  3. Woodfab Limited v. Coillte Teoranta [2000] 1 I.R. 20, per Shanley J

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.