INTERROGATORIES: THE CINDERELLA OF IRISH PRE-TRIAL PROCEDURES

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1 INTERROGATORIES: THE CINDERELLA OF IRISH PRE-TRIAL PROCEDURES Maurice Collins SC 24 November 2010 INTRODUCTION 1. Whether for good reason or not, the delivery of interrogatories is a strikingly underutilised procedure in Irish litigation. Even in the Commercial list - where as you will know, the Rules dispense with the general requirement to obtain the leave of the Court 1 - interrogatories are a rarity. 2. In this context, it is useful to contrast the use of interrogatories with the use of documentary discovery for which, of course, provision is also made in Order 31. In virtually every private law action that comes on for trial in the High Court, discovery has been made. In many commercial cases (and some personal injury actions also, especially medical negligence claims) the exercise of making discovery is a massive one, involving very significant consumption of resources, both financial and otherwise. This is so despite changes in the Rules that were intended to reduce the burden of discovery (particularly the changes made in 1999 as a result of the decision of the Supreme Court in Brooks Thomas v Impac [1999] 1 ILRM 171) and an increased recognition on the part of the Courts that that burden may often be disproportionate to the litigious benefits obtained from it. 2 Just last week, I was involved in a hearing in relation to discovery where my clients estimated that making discovery of the various categories they had agreed to discover (other categories were in dispute) would cost them in the region of 1.3 million. Unfortunately, that is by no means a unique case in that regard. 3. Given the ever increasing cost of discovery, one might have expected more frequent recourse to interrogatories. After all, the admission of a disputed fact(s) should have the potential to reduce significantly the need for discovery, therefore saving both time and money. 3 Somewhat surprisingly, however, there has, as far as I am aware, been no perceptible alteration in practice. 1 Though in cases of fraud and breach of trust, no leave is required - see Order 31, Rule 1. The Rules governing competition cases (Order 63B) mirror those of Order 63A i.e. no leave is required. 2 See the decisions of the Supreme Court in Ryanair plc v. Aer Rianta [2003] 4 IR 264; Framus Ltd. v. CRH plc [2004] 2 IR 20 and Dome Telecom Ltd. v. eircom Ltd. [2008] 2 IR The authorities, it should be acknowledged, suggest that interrogatories should normally be delivered following the making of discovery: see Abrahamson et al, Discovery and Disclosure (2007) at paragraphs to That approach seems to me to be ripe for reconsideration in light of the extraordinary burden of discovery in many cases coming before the Courts these days. Page 1 of 6

2 4. There are many who believe that the cost of litigation in this jurisdiction has reached a level that is unsustainable. There are many reasons for that situation. The cost of discovery is certainly a significant one. More generally, with the exception of litigation in the Commercial list, pre-trial procedures in this jurisdiction require urgent review. Far too frequently, actions come to Court without the issues being clearly or properly defined and delimited and without the parties having been required to state their position in relation to those issues. Trial by ambush is still prevalent in this jurisdiction. 5. There are many contributory factors. One is the system of pleading and, in particular, the manner in which, for the most part, defences are pleaded as traverses. Far too often, the terms of a defence will reveal little or nothing of the actual position of the defendant and, when pleaded negatively, is immune to particularisation. 4 Another factor is the absence of any requirement for verification of what is pleaded. As you know, changes have been made in relation to personal injury claims which require more positive pleading and which requires the parties to verify the facts in their pleadings. While these changes were introduced in order to combat the problem - real or perceived - of widespread fraudulent personal injury claims, it is difficult to understand why similar changes have not been made more generally. 6. Another change that has been made in relation to personal injury actions and which, in my view, ought to be applied more generally is the requirement to provide notice of the identity of the witnesses each party intends to call to give evidence. Consideration should also be given to a general requirement to exchange witness statements, though Commercial Court practitioners will be aware that such a requirement does have significant cost implications. 7. It probably follows from that analysis that some level of active case management should be available outside the Commercial list, at least in relation to significant and/or complex proceedings. 8. More generally, it seems to me that there is an urgent need for a wide-ranging review of civil procedure in this jurisdiction, with a view to identifying procedural changes which will contribute to reducing the burden - in terms both of cost and of time - of civil litigation here. 4 The absence of any effective mechanism where a party (whether plaintiff or defendant) is or can be obliged to state clearly what his or her case is, in my opinion, a fundamental weakness of Irish civil procedure. As already observed, a defendant who confines his or her defence to a traverse of the claim against him/her cannot, it appears, be required to explain that position: see Behan v Medical Council [1993] 3 IR 523. More generally, Courts are, in my view, inclined to adopt too narrow an approach as to the permissible scope of inquiry that may be advanced by way of a notice for particulars. In the absence of any general procedure for the exchange of witness statements, the rationale for confining the right to particulars to being informed only of the broad outline of the case being made, as well as the blanket exclusion of any right to be told the evidence intended to be relied, is difficult to discern. Equally, it is not clear to me why matters of law should be beyond the range of permissible inquiry. Page 2 of 6

3 9. What, it may be asked, has any of this to do with interrogatories? Well, in principle, the delivery and answering of interrogatories ought to clarify the issues in dispute, thereby reducing the burden of discovery and narrowing the evidence required at trial. The process should also encourage settlement by enabling parties and their advisers to reach a more informed view of the likely outcome of the proceedings at an earlier stage. 10. This, I hasten to add, is not a new insight. More than 40 years ago, Walsh J observed 5 I would 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. 11. No new dawn has happened in the period since that judgment and instead in very many decisions of the High Court the delivery of interrogatories has been characterised as exceptional and one requiring some special exigency if it is to be permitted. As Abrahamson et al observe in their excellent Discovery and Disclosure (2007), such a restrictive approach is difficult to justify (particularly so, perhaps, now that provision has been made for the delivery of interrogatories without leave in cases within Orders 63A and 63B) and, for my part, I find it difficult to disagree with their view that courts should not treat interrogatories as an exceptional procedure, but rather should encourage their use wherever they can be used without impinging on the entitlement to a fair hearing. FACTORS WHICH MAY EXPLAIN THE UNDERUSE OF INTERROGATORIES/SUGGESIONS FOR REFORM The Requirement to Obtain Leave 12. Unless an action has been admitted to the Commercial or Competition list, or involves allegations of fraud or breach of trust, one cannot deliver interrogatories without leave of the Court. The rationale for this requirement is, presumably, a desire to avoid the oppressive or inappropriate invocation of the procedure. However, it results in additional costs and in delay. 13. In my opinion, there is much to be said for removing the requirement for leave. If interrogatories are delivered which the receiving party considers to be oppressive or otherwise inappropriate, he or she can state that position and the requesting party can then decide whether to seek an order requiring the disputed interrogatories to be answered in much the same way as where a party declines to make voluntary discovery. The Form of Interrogatories Permitted 14. The Rules clearly envisage that interrogatories are framed in the negative and 5 In J & LS Goodbody Ltd v Clyde Shipping Co Ltd (Unreported, Supreme Court, 9 th May, 1967) Page 3 of 6

4 capable to being answered yes or no. In practice, that restrictive form of question is not insisted on in the Commercial List and in my opinion that more flexible approach should be adopted generally and the Appendices to the Rules altered accordingly. Substantive restrictions 15. There are then a variety of substantive restrictions, many derived from distinctions which are not self-evidently compelling or sensible. 16. Order 31, rule 1 requires that interrogatories relate to a matter in question in the cause or matter. That requirement of relevance is, on its face, similar to, and certainly no more restrictive than, the provisions of Order 31, Rule 12 in respect of relevance in the context of documentary discovery. Yet, as is well explained by Abrahamson et al, the Courts have in practice adopted a significantly more restrictive approach to the issue of relevance in relation to interrogatories: see at para (page 151) and following. 17. In Mercantile Credit Co of Ireland v Heelan [1994] 2 IR 105, Costello J held that interrogatories had to relate to the issues raised in the proceedings and could not relate to the evidence that a party wishes to adduce to establish his case. It is by no means clear to me that such distinction - which in practice will inevitably be elusive - is consistent with the terms of Order 31, Rule 1 nor is it immediately clear to me that it is sensible in any event. Equally questionable, in my opinion, is the distinction drawn in the cases - as for instance by O Sullivan J in Money Markets International Stockbrokers Limited v Fanning [2000] 3 IR between information and admissions and the application of different approaches to the two categories thus created. 18. Money Markets is also notable for O Sullivan J s approval of a dictum of Buckley LJ (in Hooton v Dalby [1907] 2 KB 18) to the effect that whereas a party is entitled to interrogate the other party in relation to facts which tend to support the interrogator s case, it cannot do so in relation to facts which tend to support the other party s case. I share the difficulty of Abrahamson et al in understanding that proposition. 19. As a general principle, it is difficult to understand why the approach to relevance in the context of interrogatories should be different to the approach taken in the context of discovery and it is particularly difficult to understand why a significantly narrower approach should be taken in relation to interrogatories. Without meaning to understate the burden of answering interrogatories - particularly in respect of corporate parties - that burden will in most if not all cases be much less than the burden of making discovery and it makes little sense to have a more restrictive approach to relevance in relation to interrogatories. 20. There are other restrictions and exclusions the justification for which is questionable. A body of case law suggests that interrogatories will ordinarily not be permitted where the information sought would be available by cross-examination at trial - see for instance the decision of Laffoy J in McCole v Blood Transfusion Service Board (Unreported, High Court, 11 th June, 1996). 6 But to exclude the delivery of 6 But see Crofter Properties v Genport Ltd (Unreported, High Court, McCracken J. 30 th November, 2001) Page 4 of 6

5 interrogatories on that basis ignores the legitimate interest of the parties to litigation - and the parallel public interest in the effective and efficient administration of justice - in being in a position to make an informed assessment of their prospects of success/failure in advance of a hearing, thus facilitating the settlement of disputes. In addition, as I have already observed, pre-trial evidential disclosure is likely to narrow the range of issues in dispute, reduce the scope of discovery and lead to material savings in costs. 21. Similarly, it seems to make little sense to exclude the use of interrogatories for the purpose of seeking admissions on the basis that they relate to facts and matters which the requesting party has the capacity to prove, as was suggested by Lynch J in Bula Ltd v Tara Mines Ltd [1995] 1 ILRM 401. Necessity/Oppression 22. I do not mean to give the impression that I am in favour of an untrammelled right to deliver interrogatories. Clearly, as with discovery, there is the potential for misuse and/or oppression. The requirement to establish necessity is a safeguard, however, as is the well-established principle that interrogatories will not be permitted where they would be oppressive or where they would give rise to unfairness or prejudice: see for instance the decision in Mercantile Credit. 23. It does, however, appear to me that, if interrogatories are ever to achieve their potential as a cost saving device, there needs to be a re-evaluation of the approach taken in the authorities to the circumstances in which interrogatories ought to be permitted and the adoption of a more flexible and less prescriptive approach. Answering Interrogatories 24. Interrogatories must be answered on affidavit and it need hardly be said that the greatest care needs to be taken in formulating answers. Where the answering party is a company, it is clear that the officer swearing the affidavit must make whatever inquiries as are necessary to put him or her in a position properly to give the company s answer: J & LS Goodbody Ltd. Even where the answering party is an individual, there may be some duty of inquiry: ibid. CONCLUDING OBSERVATIONS 25. I have sought to make the case for adopting a more liberal approach to the delivery of interrogatories. However, it should not be thought - and I certainly do not suggest - that doing so would be a panacea. Liberalising the interrogatories regime would, in my opinion, deliver real benefits but is not going to alter fundamentally the litigation landscape in this jurisdiction. 26. The current economic circumstances merely accentuate what would in any event be the position, namely that the cost of litigating in the Superior Courts in this jurisdiction will soon be - if it is not already - effectively beyond the means of most persons, be they individuals or corporates. It is as much in the interest of the profession as it is in the interest of actual and potential litigants (and the interest of the wider public) that pre-trial procedures are reviewed with the object of developing new procedures which identify more quickly and more effectively the issues between the parties, which facilitate the earlier assessment of the parties respective Page 5 of 6

6 prospects of success, which encourage earlier engagement with a view to pre-trial resolution and which lead to shorter hearings where such resolution proves impossible. Similar exercises have been undertaken in other common-law jurisdictions, not least the Lord Wolff-inspired reform of civil procedure in England and Wales. 27. In my opinion, this jurisdiction needs a new blueprint for civil litigation and it is essential that the profession should be centrally involved in the process of determining what that blueprint should be. 24 th January, 2011 Maurice G Collins 2 Arran Square Dublin 7 Page 6 of 6

7 COMMERCIAL COURT RULES WITNESS STATEMENTS Paper by Martin Hayden SC Monday 24 January Undoubtedly everybody is well fed up of hearing that the Commercial Court Rules brought a radical change to the manner and fashion in which litigation is conducted in this Country. The truth of the situation is that that is factually correct. The traditional approach of trial by ambush was radically altered by the provisions brought in in relation to the Commercial Court. Rules 2. Order 63A sets out the Rules governing procedures in relation to the Commercial Court. Order 63A Rule 22(1) is the governing position and states as follows: Unless a judge shall otherwise order, a party intending to rely upon the oral evidence of a witness as to fact or of an expert at trial shall, not later than one month prior to the date of such trial in the case of the plaintiff, applicant or other part prosecuting the proceedings and not later than seven days prior to that date in the case of the defendant, respondent or other party defending the proceedings, serve upon the other party or parties a written statement outlining the essential elements of that evidence signed and dated by the witness or expert, as the case may be. 3. As can readily be seen from the wording of the Rule the purpose of the witness statement is to put the other party on notice of the essential elements. It is designed to ensure that a party is not taken by surprise in the evidence to be adduced. In fact it is designed purposefully in order to ensure that the case stays within the parameters of what is at issue and the evidence being led is at least notified in its essential terms to the opposition. 4. This is different to the position as adopted in England under the Civil Procedure Rules [hereinafter CPR ]. Contents of the Witness Report 5. A fundamental difference between the position prior to and post the Commercial Court Rules can be seen from the distinction between the decision of Keane J. in Doyle v-

8 Independent Newspapers [Ireland] Limited [2001] 4 IR 594 and the Rules themselves. In the former Keane J. at page 598 states the following: The case in which a Court would actually order a defendant to say what witness he is going to produce at trial are extremely rare and unusual...there is certainly no general principle requiring one party to furnish in advance to the other the names of the witness he is going to call in relation to a specific plea in his defence or a statement of claim as the case may be 6. That now obviously is entirely changed as a consequence of the Rules. 7. This poses one of the greatest difficulties for the lawyers acting on behalf of parties to a case. The witness statement is that of the witness. It should when being prepared by the lawyers be on the basis of actual information and detail furnished by the witness. The danger of drafting a perfect witness statement is inevitably the danger of putting in words, concepts and ideas into a witness s mind which were never there in the first instance. Whilst it is rather obvious to say the statement should reflect the witness s view of life in practice it is extremely difficult to stay away from the inevitable desire to shore up gaps and mend fences. Difficult and all as this may be it is one that must be strictly adhered to. In fact the difference in approach between the CPR and Irish Rules go very much to the heart of this distinction and in particular the permissibility of additional witness statements as evidence and case examination progresses. In fact the fear in England and Wales of a never ending sequence of supplemental witness statements was addressed by Parts 32.5(3) and (4) of the CPR which provides that the admission of additional evidence to that contained in a witness statement is the exception as opposed to the rule. This in part was based upon the concerns expressed by Lord Wolff in Access to Justice Final Report July 1996 Chapter 12 paragraph 54 where he said that the fear was when it comes to the application of evidence set out in witness statements there is a fear that it will lead to witness statements becoming elaborate, costly branch of legal drafting. 8. That said the divergence in approach between England and Ireland was highlighted by Mr. Justice Kelly extra judicially in an article in the Bar Review (1) Bar Review 4 entitled The Commercial Court where he sets out the view in relation to Order 63A Rule 22 as follows: The effect of this is that each party will know all the salient parts of the evidence that is going to be led against them. There was much debate as to whether the Rules should go further than this and require an actual proof of the evidence in its totality to be furnished and provide that such proof would be treated as the evidence in chief once verified on oath. This would have led to the abolition of examination in chief as we know it, save in exceptional circumstances. Rules of this type apply in the Commercial Court in London but not in Edinburgh or Belfast. On the whole, the experience of the London Commercial Court suggests that such a procedure does not give rise to any savings in time or costs. This is because a whole industry has been built up in the preparation of witness statements where they run into many drafts with days spent perfecting them. Rather a more restricted approach was therefore decided upon. 9. There has as of yet not been a published set of formal guidelines on witness statements in this jurisdiction. Under the CPR Rules, Appendix 9 contains Guidelines and Witness

9 Statements. This is quite a useful template for preparing witness statements. An easy source of reference for these is contained in the book entitled Documentary Evidence, Tenth Edition by Charles Hollander QC at page Summary 10. The approach is to ensure that witness statements do not embark upon assumption or assertion or engage in legal or other arguments. Its function is to set out in writing the evidence in chief of the witness, to this then as far as possible it should be in the witness s own words. Again the witness statement ought not contain lengthy quotations from documents and specifically whilst not again a term of the Rules in this jurisdiction as a matter of good practice the witness statement should identify and indicate which of the statements made in it are made from the witness s own knowledge and which are made on the basis of information or belief. If the latter then the source of that information should be set out. 11. If the witness statements [as has become more and more the practice] are treated as the evidence in chief it must contain a statement that he / she believes the matters stated in it are true. Obligation as to Disclosure 12. The question arises as to whether or not there is an obligation or duty to disclose in the witness statements everything including warts and all. Whilst not yet the subject matter of a judicial determination the wording of Order 63 [53] Rule 22(1) is, in my view, not such as to oblige a party to disclose warts and all. It is to give the direct evidence intended to support the claim being advanced. Therefore it is not at a stage as of yet whereby admissions are obligatory. That situation can be addressed by the opposition though by use of interrogatories. Late Delivery of Witness Statements 13. In normal fashion the Commercial Court will at the directions motions give appropriate orders and directions as to the exchange of documentation, witness statements and so forth. If it is the case that you have failed to comply with a timetable directed by the Court or anticipate failure it is imperative that you apply to the Court for an extension of time. It is not simply a case of the parties as between themselves agreeing to vary timetables, the subject matter of Court Orders. As you will undoubtedly have heard time and again the view expressed in the Commercial Court is that this is judged managed litigation. By that the Court is indicating that it is not acceptable or permissible to merely agree inter-parties excluding the Court for the altered timetables. The rationale behind this is obvious in that the Commercial Court time is strictly limited. There is great demand on its resources and slippage results in dates and times being lost to the detriment of other parties who are capable of actually having their cases ready to be heard. 14. The English CPR is extremely draconian in relation to specified timetables. In addition a failure to serve a witness statement means a witness in question will not be permitted to be called to give oral evidence unless the Court direct otherwise [CPR Rule 32(10)]. This approach is of significance in this jurisdiction in light of the decision of Mr. Justice Kelly in In Re: Northern Healthcare Limited, Unreported December 1 st 2005 [page 19] where he states the following: Order 63A of the Rules of the Superior Courts which govern cases in the Commercial List seek to achieve precisely the same object as the relevant provisions of the CPR in

10 England; they seek to bring about a just and expeditious trial while seeking to minimise costs. Objection to Contents of Witness Statements or Evidence 15. Under the English CPR at Rules 32.1 and 32.2 for the first time a jurisdiction was brought into being to exclude and control evidence in civil cases. The views expressed in England are to the effect that this power can be exercised at any stage but that it is a brave judge who is prepared to exclude evidence pursuant to case management powers in advance of the trial. [See Hollander, Documentary Evidence, Tenth Edition page 532] 16. In the Irish decision of P.J. Carroll & Co. Limited v- Minister for Health & Children [2005] 1 IR 294 a dispute arose in relation to the admissibility of evidence at a further directions hearing. 17. In the High Court Mr. Justice Kelly had excluded certain evidence on the basis of the defendants admitted facts thereby rendering the new evidence irrelevant. This became the subject matter of appeal to the Supreme Court and whilst the Supreme Court took a different view as to whether the information ought to have been admitted in or not they expressed no contrary view to the trial judge s expression as to his jurisdiction to exclude evidence. 18. Therefore if you are presented with a witness statement containing matters extraneous to the matters at issue or hearsay or evidence or references that are otherwise objectionable there is a jurisdiction to allow application be brought to exclude this information. This should be done as a matter of urgency and should be brought as expeditiously as possible after receipt of the offending witness statement. A case in point in relation to the Courts jurisdiction [albeit under the English CPR Rules] is that of Peter Robert Wilkinson v- West Coast Capital & Others, a decision of Mr. Justice Mann in proceedings entitled In the Matter of New Gadget Shop Limited and the Gadget Shop Limited and In the Matter of the Companies Act That case related to an application being brought to exclude certain parts of witness statements by way of pre-trial application. The evidence challenged came into two separate groups. The first group of paragraphs challenged was on the basis that the references do not go to any of the issues in the petition to wind up. The second group of paragraphs sought to be excluded related to the witness referring to without prejudice correspondence. 20. The Court expressed at paragraph 5 of the decision, the following: In my view, I should only strike out the parts of the witness statements which I am currently considering if it is quite plain to me that, no matter how the proceedings look at trial, the evidence will never appear to be either relevant or, if relevant, will never be sufficiently helpful to make it right to allow the party in question to adduce it. With evidence of this nature, that is likely to be quite a heavy burden. 21. The Trial Judge in that case went onto ultimately hold certain paragraphs still to be valid on the basis that; in relation to none of them am I satisfied that they can never be relevant, or can never be sufficiently helpful to the petition or to the trial judge so as to make it right to strike them out now.

11 22. The Trial Judge ultimately went on to say the following: However, I am unable to say at this stage that the Court will inevitably wish to hear nothing at all about these points 23. The jurisdiction exists but the burden is a heavy one. This decision has been approved in this jurisdiction by Mr. Justice Kelly in the case of McCaughey v- Anglo Irish Bank plc. If a Witness will give a signed Statement 24. This sometimes happens. The way to resolve the difficulty is to identify the problem to the Court at the first opportunity and seek liberty to file a précis of the witnesses intended evidence. Trial by Affidavit 24. Separately the Commercial Court has a discretion to direct matters to be proved by way of Affidavit and you should always consider whether or not that would achieve the desired result without additional costs. The manner in which this is to be adopted is that directions must be sought in this regard at a directions hearing. Similarly the Court has a power to direct that a matter be proved by way of Affidavit.