The High Court recently gave judgment in an application for the delivery of interrogatories in a personal injuries action. The plaintiff's underlying claim is for damages for personal injuries allegedly arising from the administration to him of the swine flu vaccine.
The plaintiff brought an application for an order pursuant to Order 31, Rule 1 of the Rules of the Superior Court requesting leave to deliver interrogatories on a number of the defendants. The parties came to an agreement on all but one of the interrogatories which was addressed to the fourth named defendant, GlaxoSmithKline Biologicals SA (GlaxoSmithKline) who had developed the vaccine at issue in the case. The interrogatory in contention related to analysis of adverse events associated with two swine flu vaccines produced by GlaxoSmithKline (proposed interrogatory).
GlaxoSmithKline had previously provided a lengthy affidavit from its senior director (Affidavit) comprising information which responded to many of the issues raised in the interrogatories. It was GlaxoSmithKline's position that the Affidavit was sufficient to respond to the proposed interrogatory. In defending the application, GlaxoSmithKline submitted that the proposed interrogatory:
- was framed by reference to terms which were lacking in the requisite precision and clarity
- was not a single question but rather comprised multiple questions
- was rooted in premises and issues of facts which were disputed
- comprised questions and sub-questions which related to core issues in the case and were matters for evidence, including expert evidence at trial
- ignored extensive discovery made and a detailed Affidavit sworn in the proceedings, and
- was unnecessary for the fair disposal of the proceedings or for the saving of costs.
The Court's analysis
The Court was satisfied that the proposed interrogatory concerned a number of contentious issues between the parties. In addition, the Court found that the manner in which the interrogatory was phrased required the defendant, directly or indirectly, to accept a conclusion of a disputed premise. The Court was therefore not satisfied that the proposed interrogatory had the clarity required or that it was capable of a clear answer. Finally, the Court found that no injustice would be occasioned to the plaintiff by the refusal to grant leave to deliver the proposed interrogatory because the issues were capable of being addressed through oral evidence or cross examination at the hearing of the action.
While the Court rejected the application in this case, the judgment is welcome as it contains practical and constructive commentary around the use of interrogatories generally. The Court encouraged the use of interrogatories in the case and stated that, when used, the interrogatory must be clear and be capable of a clear answer. The Court further noted that interrogatories should not be used to elicit opinions and, fundamentally, should not be such as to prejudice a fair hearing of the issues between the parties.
The judgment in this case is in line with recent judicial commentary that where appropriate the use of interrogatories is to be encouraged among parties to litigation in order to narrow issues and save on costs. The judgment also reminds parties to litigation that the questions posed by interrogatories should be clear to allow equally clear answers in reply.
Originally published 09 October 2020
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