The recent judgment of Mr Justice Barrett in Goode Concrete v CRH Plc, Roadstone Wood Limited and Kilsaran Concrete IEHC 189 (Goode Concrete) provides useful guidance on applications to strike- out interrogatories where they are prolix, oppressive, unnecessary or scandalous.
What are Interrogatories?
Under Order 31 of the Rules of the Superior Courts (RSC), interrogatories can be used to obtain relevant information on oath from the opposing party. Interrogatories can assist a party in proving its case or undermining it’s opponents case by gathering information relevant to facts in dispute and obtaining admissions from the opposing party. Interrogatories can also be a more cost-effective and time-efficient method of obtaining information than discovery.
In the High Court (Court), permission (leave) from the Court is generally required to deliver interrogatories. For proceedings in the Commercial List and Competition List, interrogatories can be delivered without leave, unless a specific corporate officer is requested to answer the interrogatories.
Under the RSC, interrogatories must take the form of leading questions, must be in a negative form and should elicit a “yes” or “no” answer from the opposite party. This point was recently reiterated in J. & L.S. Goodbody Ltd v Clyde Shipping Co Ltd IEHC 189.
Application to Strike-Out Interrogatories
Under Order 31, Rule 7 RSC, an application can be made to set aside interrogatories on the ground that they have been exhibited unreasonably or vexatiously, or struck out because they are prolix, oppressive, unnecessary, or scandalous. Such an application must be made within seven days of the delivery of the interrogatories.
Goode Concrete v CRH Plc, Roadstone Wood Limited and Kilsaran Concrete
In Goode Concrete, the defendants each made an application under Order 31, Rule 7, to set aside the interrogatories delivered by the plaintiffs on the grounds that they were prolix, oppressive, unnecessary, or scandalous. Mr Justice Barrett granted the defendants’ applications and struck out the interrogatories in their entirety.
Barrett J first considered whether the plaintiff should have sought leave to deliver the interrogatories. Although these were Competition proceedings, it was the plaintiff’s intention for a specific corporate officer of the defendants to answer the interrogatories. Therefore, under Order 31, Rule 5 RSC, leave to deliver the interrogatories should have been sought from the Court. Absent such leave, the normal rule applies where the company secretary answers the interrogatories.
Regarding the interrogatories delivered by the plaintiff, the Court found them to be oppressive for the following reasons:
(i) The interrogatories were 873 pages in length and consisted of approximately 8,000 individual questions. The time and cost arising for the defendants to answer the questions would have been enormous. Barrett J estimated that the cost to the defendants’ of answering the interrogatories would be hundreds of thousands of euros.
(ii) Almost 3,000 of the questions were requests for documents or categories of documents, which were, in substance, requests for discovery. Barrett J cited case law to the effect that information sought by interrogatories must relate to matters raised in the pleadings. Interrogatories seeking evidence to assist in proving a case are not allowed. It is inappropriate for a requesting party to use interrogatories as a fishing expedition.
(iii) Other interrogatories were irrelevant and sought granular detail of evidence, witness identities, or privileged communications. Barrett J noted that whilst questions about the existence of a document are permissible, it is not acceptable to raise further questions to establish facts surrounding the documents.
(iv) Despite the plaintiff’s averment that most of the interrogatories required a simple ‘yes’ or ‘no’ answer, the majority were not, in fact, capable of eliciting such an answer and required a narrative and elaboration.
Examples of Inappropriate Interrogatories
In an Appendix to his judgment, Barrett J listed examples of some of the deficient interrogatories raised by the plaintiff. These included:
- Interrogatory 1.2:
“If ‘yes’, please exhibit the request for tenders in your affidavit and answer.”
This interrogatory was objectionable as it was an inappropriate request for documentation in lieu of discovery.
- Interrogatory 1.4:
“If ‘yes’, on what date was the contract signed.”
This interrogatory was objectionable as it was a request for information and additional evidence. It was also not confined to a “yes” or “no” answer.
Checklist for a Successful Strike-Out Application
Applying the decision of Barrett J, the following practical considerations can assist in determining the likelihood of a successful application to strike out or dismiss interrogatories:
- The volume of interrogatories delivered;
- Cost and time required to answer;
- Impermissible requests for documents or categories of documents;
- Questions requesting categories of documents in lieu of a discovery request;
- Questions irrelevant to the facts in issue on the pleadings;
- Questions relating to granular details involving matters of evidence;
- Questions involving impermissible attempts to ascertain the identity of witnesses; and
- Interrogatories requiring narrative and elaboration.
How can we help?
If you have any queries concerning interrogatories and their proper and efficient deployment to reduce litigation costs, please get in touch with Laura Murdock or your regular William Fry contact.
Contributed by Sarah Plunkett.