New Rules on Interrogatories

The Superior Court rules relating to interrogatories, namely targeted questions aimed at clarifying issues in dispute, changed in the second half of 2024. Limitations on their use which previously applied have now been lifted. This means they can be more freely used in proceedings, potentially narrowing issues and reducing discovery which should help reduce costs and bring cases to hearing more quickly. Our Commercial Disputes team examines the changes.

Interrogatories are essentially targeted questions aimed at clarifying facts. The questions involved must be straightforward and must be capable of being answered clearly. They typically involve a ‘yes’ or ‘no’ response in each case. However short statements of fact without narrative are permissible. Historically, interrogatories were limited to particular types of case without needing the Court’s permission, such as Commercial Court cases. However, recent changes[1] regarding the use of interrogatories have meant that they can be used more freely in litigation than was previously the case. These changes offer potential advantages for litigants, as the responses received may remove the need for certain types of discovery or may limit the evidence required to prove a party’s case.

Background

Interrogatories are specific questions designed to clarify facts. They should help the requesting party either proving its case or challenging the case being made against it. Interrogatories may be used especially where the requested party “has the knowledge or the ability conveniently to prove facts which are important to be established in aid of the opposing party’s case, such opposing party not having such knowledge nor the ability to prove the facts either at all or without undue difficulty.”[2]

Usually framed as questions aimed at eliciting a ‘yes’ or ‘no’ response, they can be used to obtain information about the facts in dispute or to obtain admissions. By their nature, they can be productively used to reduce issues in dispute. As a consequence, this approach can reduce the extent of discovery that may need to be sought or the evidence that may be required by a party in support of their case.

Historically, interrogatories could only be used freely in cases where someone was seeking damages or other remedies for claims involving fraud or breach of trust. More recently, the Commercial Court rules also allowed parties in cases in that list to seek interrogatories without restrictions. Otherwise, permission from the Court was needed to use interrogatories. This involved making an application to the Court. Before granting permission, the Court had to be satisfied that the information being requested was relevant to the issues in the case. It also had to be necessary to ensure a fair resolution of the matter or to save costs. The Court also had to ensure that the interrogatories were not unfair, excessive or intended to harass the other party.

Applications for permission to deliver interrogatories were rare. Outside of the specific types of cases where interrogatories could be used freely, they were rarely used. The new rules, which are addressed in more detail below, now give litigants far greater freedom to use interrogatories.

The new entitlements

The rules replace rules 1 to 11 of Order 31 of the Rules of the Superior Courts. Under the new entitlements, a party can now deliver one set of interrogatories to another party in the case without needing the Court’s permission, as long as the set contains no more than 20 interrogatories. A party can request interrogatories at any time after submitting their statement of claim or defence. Importantly, this can be done before voluntary discovery. If addressed to a company or unincorporated body of persons, the interrogatories are by default to be answered by the secretary or person performing the functions of the secretary, or such other person as may be agreed. However, if the interrogating party requires a specific officer, employee or member to answer certain interrogatories, an application to the Court is required.

The rules require that the interrogatories should include a brief statement setting out the reasons why the answer to each question is necessary for resolving the dispute. They also set out certain criteria the interrogatories should meet. These include, at new rule 2, that they be confined to:

1. Questions about facts in issue or facts reasonably relevant to proving those issues
2. Questions about facts that the person answering is likely to know, after making necessary inquiries, and
3. Questions that can be answered with a simple "yes", "no" or a brief factual statement, without requiring a detailed explanation.

Unless it is agreed or directed otherwise, the interrogated party must respond within 21 days. In answering the interrogatories they are willing to answer, an affidavit is to be filed and delivered. If, however, they object to answer certain interrogatories, they are to file a notice setting out the grounds of any objections. The notice should include, where relevant, details of any alternative ways they are willing to address the issue raised. The notice of objection(s) should be attached to the affidavit responding to the interrogatories. The affidavit should verify any facts relied on in the notice of objection. The rules also require that the grounds for objecting be set out concisely. These grounds may include failing to meet the rule 2 criteria, as referenced above. They may also include situations where the interrogatory is not sufficiently relevant at that stage of the case. Additionally, objections can be made if the interrogatory is not submitted in good faith for the purpose of the proceedings. Reference is also made to “other proper ground of objection” but no further clarification is provided as to what this might entail.

If the party asking the interrogatories is not satisfied with the answers given, they can take further action by issuing a motion. This includes situations where they disagree with the response, any objections raised, or a proposal to address the interrogatory in another way. At the hearing of the motion, the Court may direct the interrogatories to be answered or answered further, as necessary. It may also determine that the interrogated party is not required to answer one or more interrogatories. This may be on the basis that the rule 2 criteria are not met, or that the interrogatories involved were “delivered unreasonably or vexatiously”, or “are prolix, oppressive, unnecessary or scandalous”. The Court can also direct interrogatories not to be answered if they might prejudice a fair hearing. At the hearing the motion, the Court is additionally empowered to make orders as it considers to be fair, including directing fresh interrogatories, the delivery of further details or the production of documents.

Conclusion

The recent changes to the rules regarding interrogatories may herald the increased use of this important litigation tool. Careful and considered use of interrogatories can be useful in narrowing disputed issues which may in turn minimise the discovery that may be required. Given the expense of discovery exercises, this may also make deployment of interrogatories a cost-effective exercise from a litigant’s perspective.

However, the potential advantages of possible increased use of interrogatories non-Commercial Court[3] cases do give rise to potential challenges. For example, if seeking permission for interrogatories is to be avoided in these cases, determining which are the 20 best interrogatories to seek will need to be carefully considered. Additionally, since the mechanics provided for under the new rules for interrogatories are somewhat different to what prevailed before, practitioners will need to become more familiar with seeking and responding to interrogatories. Additionally, given the new approach to the treatment of objections, practitioners will also need to develop a familiarity with advising, making and defending these applications. Those swearing affidavits addressing interrogatories will also need to be advised about the need to ensure responses are accurate.

For more information and expert advice on commercial disputes, contact a member of our Commercial Disputes team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

[1] SI 363 of 2024, Rules of the Superior Courts (Interrogatories) 2024, which came into effect on 31 July 2024.

[2] Bula Ltd v Tara Mines Ltd [1995] ILRM 401, at p.405 per Mr Justice Lynch.

[3] Although new rules amend the Commercial Court rules insofar as they address interrogatories in certain respects, the cap of 20 interrogatories without leave which generally applies is not applicable to Commercial Court cases.