Are Interrogatories In Vogue?

A recent Court of Appeal decision1 has reminded practitioners that interrogatories – essentially a series of questions involving yes or no answers – should not be disregarded as a litigation tool. Although leave of the court is required in most High Court litigation before interrogatories can be deployed, the decision is a reminder that the test for obtaining such permission is not as difficult to meet as is often perceived. Consequently, parties should not dismiss the possibility of delivering interrogatories as a useful tool in order to narrow issues in dispute.

Background

The case arose out of a life assurance policy which the the widower and daughter of the deceased assured (the plaintiffs) sought to enforce against the defendant insurance company. The defendant contended that the contract was one of utmost good faith and, in breach of same, the deceased failed to disclose all material facts relating to her medical history.

With a view to narrowing issues, and thereby shortening the trial and reducing costs, the defendant served a notice to admit facts on the plaintiffs. A six-month delay ensued before a response issued. The response involved a bare refusal to admit the facts with no further explanation. The defendant's solicitors wrote again, this time enclosing draft interrogatories dealing with the same issues. The plaintiffs did not engage and the defendant proceeded to issue an application seeking leave to deliver the interrogatories, in respect of which no replying affidavit was delivered. The application was heard by Judge Barr in the High Court and his judgment refusing permission to deliver any of the interrogatories was issued on April 21 2015. The defendant appealed.

Decision

Judge Kelly, for the Court of Appeal, quoted briefly from the High Court judgment and recited the relevant Rules of the Superior Courts relating to interrogatories (Order 31, Rules 1 to 11). He drew specific attention to Order 31, Rule 2, which provides that in considering whether to give leave the court must consider any previous offer made. In that context, he was critical of the plaintiffs' failure to engage and he also drew attention to the rules requiring objections to be considered as part of the court's determination.

He referred specifically to the Supreme Court decision in J & LS Goodbody Ltd v Clyde Shipping Co Ltd2 where Judge Walsh made the following observation:

"I would also like to express my agreement with the view expressed by the...