Court of Appeal permits use of interrogatories in insurance coverage dispute
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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 civil litigation 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.
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