The High Court refused an application by an insurer for leave to
deliver interrogatories in a coverage dispute, finding that the
alleged material non-disclosure must be proved by oral evidence at
trial.
In the case of McCabe v Irish Life Assurance plc and Danske Bank,
the defendant, Irish Life Assurance plc, sought leave to deliver
interrogatories in a case involving a challenge to Irish Life's
avoidance of a life assurance policy for material non-disclosure by
the deceased of prior medical history. The plaintiffs were
the beneficiary under the policy (the deceased's husband) and
the legal personal representative of the deceased and sought
declarations that they were entitled to performance of the contract
of insurance.
The defendant had obtained extensive discovery of the
deceased's medical records which enabled the defendant to
phrase the interrogatories with some precision.
Interrogatories are questions relating to facts in issue.
Replies to interrogatories are provided by way of yes / no
responses on affidavit and the responses may be used as evidence at
the trial. The defendant argued that if leave to deliver the
interrogatories was granted, this would substantially narrow the
issues which had to be determined at the trial of the action and
lead to a significant reduction of the costs of the trial
itself. The plaintiffs submitted that the issues were too
complex for yes / no answers and oral evidence should be adduced
from the various doctors whose existence was disclosed in the
discovery.
The High Court (Barr J) concluded that it would be unfair to order
the plaintiff to furnish answers on affidavit to the questions
raised in the interrogatories and accepted the plaintiff's
submission that the questions posed relating to the deceased's
medical conditions and treatments during her lifetime did not lend
themselves to simple yes or no answers. The court concluded
that to force the plaintiffs to furnish such answers would be an
injustice and the whole story would not be told.
The Court noted that the issue of the deceased's prior medical
records and her treatment would be crucial issues at the trial of
the action. In the circumstances, it was not unreasonable
that the defendants, who were resisting payment under the life
assurance policy on the grounds of material non-disclosure on the
part of the deceased, should prove this fact by oral evidence at
the trial of the action. Furthermore, the Court concluded
that justice requires that the plaintiffs should be given the
opportunity to test the evidence by means of cross-examination of
the defendant's witnesses.
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