Interrogatories - An underused tool in the litigation toolkit? Recent changes may assist

What are interrogatories?

Interrogatories are a series of targeted questions that may be raised to clarify issues in dispute between parties to an action. The purpose of interrogatories is to reduce the burden of discovery and narrow the evidence required at trial.

Answers to interrogatories are sworn by way of affidavit and can be treated as evidence at trial.

S.I. No. 363/2024 - Rules of the Superior Courts (interrogatories) 2024

Previously, leave of the court was required to raise interrogatories, except where the action had been admitted to the commercial or competition list, or involved allegations of fraud or breach of trust. However, following the amendment of Order 31 by S.I. No. 363/2024 (the “Amended Rules”), since 31 July 2024 litigants can deliver up to twenty interrogatories without applying for leave of the court.

Interrogatories under the Amended Rules

• A party may deliver up to twenty interrogatories at any time after delivering their statement of claim or defence without the prior leave of the court. [1]
• Interrogatories shall include a brief statement of the reasons why answers to each interrogatory or group of interrogatories are necessary. [2]
• Interrogatories must be confined to questions as to facts in issue or facts which are relevant to establish facts in issue in the proceedings. However, they exclude questions concerning the evidence that could be used to substantiate any fact. [3]
  • The distinction here being questions which ‘seek to elicit facts, and those which seek to elicit more complex matters such as opinions, inferences or intentions’ which are not acceptable grounds for raising interrogatories as per established case law. [4]

• Interrogatories must be capable of being answered by an affirmative, negative or short statement of fact without narrative. [5] This follows the understanding developed in recent case law that interrogatories do not have to be framed solely in the negative. The interrogatory must be crystal clear and be capable of a clear answer. [6]
• Interrogatories must be necessary either for disposing fairly of the cause or matter or for saving costs. [7]
• Where a party seeks to raise more than 20 interrogatories or deliver more than one set of interrogatories to the same party it must seek leave of the Court. [8]
• The other party has 21 days to file an affidavit answering the interrogatories which they are willing to answer and/or to file a notice setting out the grounds of any objection to answering any interrogatory raised. The notice should also be exhibited in the affidavit responding to the interrogatories.
• Any person swearing an affidavit responding to interrogatories must have the relevant knowledge to do so, and if necessary, the ability to make reasonable inquiries to assist in responding the interrogatories sought. [9]
• Order 31 now clearly sets out the grounds of objection to an interrogatory. The grounds for objection must be set out concisely and can include the following:
  • Interrogatories are addressed to more than one party; [10]
  • Interrogatories have not been copied to every other party involved in proceedings; [11]
  • Interrogatories have not been responded to be by the correct officer within a body corporate or unincorporated body of persons; [12]
  • Interrogatory is not sufficiently material; [13]
  • Interrogatory is not bona fide for the purpose of the proceedings; [14] or
  • Any other proper ground of objection. [15]
• The delivery of interrogatories cannot cause an injustice or unfairness to the other party. [16] The interrogating party may apply to the court where they are not satisfied with responses/objections provided within 14 days of the delivery of the affidavit/notice of objection. The court however may determine that the party is not required to reply to interrogatories which:
  (a) are delivered unreasonably or vexatiously;
  (b) are prolix, oppressive, unnecessary, or scandalous;
  (c) might prejudice a fair hearing of the issues between the parties; or
  (d) the question concerned might be admissible on the oral cross examination of a witness. [17]

Potential consequences

It is possible that the recent changes will mean that interrogatories will become more prevalent in High Court litigation, which may be a more effective way of obtaining information than through the discovery process. For practitioners, this will mean that they will need to become more familiar with both drafting and responding to interrogatories.

It is also likely then that applications to defend refusals to answer interrogatories and also to compel responses will become more common. Practitioners will therefore need to become more familiar with the merits or otherwise of making or defending these applications.

As ever, given the responses are provided on affidavit, with the deponent attesting to the truth of the responses, it is essential to advise clients of the importance of ensuring that the responses are correct.

[1] RSC Order 31 Rule 1 & Rule 3

[2] RSC Order 31 Rule 1 & Rule 2

[3] RSC Order 31 Rule 4(a)

[4] Irish Bank Resolution Corporation Limited (In Special Liquidation) and Catriona Fitzpatrick [2017] IEHC 715

[5] RSC Order 31 Rule 4(c)

[6] McCabe and anor and Irish Life Assurance plc and anor [2015] IECA 239

[7] RSC Order 31 Rule 4(d)

[8] RSC Order 31 Rule 3

[9] RSC Order 31 Rule 4(b)

[10] RSC Order 31 Rule 5 & Rule 2

[11] RSC Order 31 Rule 5 & Rule 2

[12] RSC Order 31 Rule 5 & Rule 2

[13] RSC Order 31 Rule 5

[14] RSC Order 31 Rule 5

[15] RSC Order 31 Rule 5

[16] Irish Bank Resolution Corporation Limited (In Special Liquidation) and Catriona Fitzpatrick [2017] IEHC 715

[17] RSC Order 31 Rule 9(b)(ii) & Rule 9(b)(ii) & Rule 10.