On 9 November 2015 Mr Justice Kelly delivered the judgment of
the Court of Appeal in McCabe v Irish Life Assurance Plc,
overturning a previous decision of the High Court and encouraging
greater use of interrogatories in litigation as a cost saving
measure while dispelling the notion that interrogatories may be
unsuitable for deployment in insurance coverage disputes.
By way of background, Irish Life Assurance plc, the defendant
insurer, had avoided a life assurance policy for material
non-disclosure of material facts relating to the prior medical
history of the deceased policyholder. The plaintiffs (widower of
the deceased as beneficiary and daughter of the deceased as
personal representative) sought declarations that they were
entitled to payment under the insurance policy.
The High Court had refused leave to the defendant insurer to
deliver interrogatories relating to the deceased's medical
history where this was a crucial issue at the trial of the action
and the Court therefore concluded that the insurer should be
required to prove the material non-disclosure by oral evidence at
the trial of the action (click here for our previous article on the High
Court decision).
Interrogatories are formal questions a party serves on its opponent
prior to a case progressing to trial, the responses to which are
usually a simple affirmation or denial and which form part of the
evidence. Leave of the Court is required to deliver
interrogatories, except in the Commercial Court. The aim of these
formal questions is to allow that party reduce and better determine
the scope of the case and to narrow the issues between the parties
before trial.
By way of preliminary observations, Judge Kelly commented on the
benefits of interrogatories, which can obviate the necessity for
expensive and time consuming discovery, can dispose of issues prior
to trial, can lessen the number of witnesses and result in the
overall shortening of trials. However, notwithstanding the
benefits, the Court observed that interrogatories are largely
ignored in many cases. The Court commented that given that
litigation has increased enormously in quantity, complexity and
cost it is high time that interrogatories are used more
frequently.
It was clear to the Court that if the defendant insurer was
required to formally prove the deceased's medical history it
would involve the attendance of numerous doctors thus incurring
significant costs and adding to the length of the trial. The Court
concluded that the interrogatories sought served a clear litigious
purpose and as a matter of probability would save significant costs
and shorten the trial.
Judge Kelly found that the plaintiffs had not presented any
evidence to demonstrate that requiring answers to the
interrogatories was in any way unfair or oppressive. Notably, the
Court considered that there was nothing inherently unfair in
directing the delivery of interrogatories simply because a claim is
being made on foot of an insurance policy which has been avoided
for non-disclosure. In the view of the Court, if interrogatories
are delivered and the plaintiffs accept the accuracy of the facts
pleaded by answering the questions in the affirmative, the question
of whether those facts were sufficient to justify the avoidance of
the policy will be a question of law and no further medical
evidence would be required. The Court therefore disagreed with the
view of the High Court that "the whole story would not be
told" if the plaintiffs were required to answer
interrogatories and that they should have an opportunity to test
the evidence by way of cross examination.
It is also notable that the Court was critical of the
plaintiffs' solicitors for failing to engage at all when asked
to admit relevant facts or to respond to the draft interrogatories,
finding that this was "an unacceptable approach to the conduct
of litigation". It was the practice in civil cases to draft
interrogatories in the negative and the Court found this outdated
and recast the interrogatories in the form used in the Commercial
Court.
While interrogatories have become a feature of Commercial Court
litigation, as the Court commented, they remain largely ignored in
civillitigation in other divisions of the High Court,
notwithstanding the potential cost saving benefits. The cost of
discovery has become particularly burdensome in the age of
electronic documents and there is an opportunity to reduce the
scope of discovery required where interrogatories are properly
deployed. As demonstrated by this particular case, interrogatories
also present an opportunity to significantly reduce the number of
witnesses required to give oral evidence and to shorten the length
of a trial. It is therefore hoped that this decision will encourage
greater use of interrogatories and engagement between parties to
seek to narrow the issues in dispute between them and to save
costs.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.