[2005] IEHC 230
[No: 12463P of 1999]
BETWEEN
PLAINTIFF
DEFENDANT
DECISION OF THE MASTER OF THE HIGH COURT 20TH APRIL 2005
This is an application by the plaintiff for leave to deliver sixty two interrogatories on the defendant. It is misconceived.
Most practitioners are now reasonably familiar with the requirement that, for the purposes of a Discovery application, circumstances which have created an evidential deficit for the applicant should be deposed to. The Court needs to have material before it to enable it to judge whether discovery is necessary to secure that the litigation proceeds fairly. Sometimes - rarely, it must be said - that material is self evident from the pleadings. In other cases - most cases in fact - the reason discovery is being sought needs to set out on affidavit.
Ensuring fair litigation is also the primary yardstick to be applied in applications for interrogatories. Requiring the respondent to depose to facts in advance of the trial is a patently unfair departure from the standard time honoured mode of trial. To persuade the Court to make such an order an applicant must establish, on affidavit, circumstances of a sort which occur only rarely, an exception to the pattern of events generally found in litigation. The terms "special exigency" has been employed to describe such circumstances.
While an applicant may occasionally experience some little difficulty in persuading the Court to allow him access to his opponents documents to enable him to find a missing piece of the factual jigsaw, this difficulty will be as nothing compared to the mountain he must climb to persuade the Court that a "special exigency" exists which requires that, in fairness to him, his opponent should be ordered to go into evidence before the trial of the action.
A special exigency will almost never be apparent on the face of the pleadings.
This case is brought by the plaintiff because he fell in Cork University Hospital on 9th July 1998 and sustained a broken nose and a laceration to the left side of his forehead. The circumstances of the fall are not set out in the Statement of Claim, not even, as so often happen, in the particulars of negligence. But it is there we find two particulars, namely "failing to diagnose adequately or . . . provide adequate treatment in respect of the injuries caused to the plaintiff" which are out of place and relate to a different action not brought in these proceedings: this case is about the fall, not the treatment afterwards. The plaintiff's solicitor, or particulars furnished 14th June 2000, inconsistently asserts that the plaintiff "is 66 years of age and was born on 1st May 1944". The defendant pleads that the plaintiff had consumed a quantity of alcohol which "precipitated his collapse at home and subsequent weakness" and that his fall was "due to an episode of generalized seizure".
There is an understandable misconception about interrogatories. Because the procedure involves the swearing of an affidavit by the respondent setting out facts which go towards building and completing the applicants case, the purpose of the exercise is thought to be to secure admissions. It is not. It is about information. Occasionally the information is of such a nature as to be unambiguously supportive of the applicant's case but that is not the basis on which the interrogatory ought to be sought or ordered. Interrogatories are about information. Occasionally, but only occasionally, that information will amount to an admission, but interrogatories to secure, as such, an admission of a material fact in issue will be ordered only in truly exceptional circumstances the like of which it is impossible to speculate on or postulate.
The case law is clear cut. The information being sought by the applicant must be as to facts which relate to facts which are in issue. The respondent cannot be asked anything other than whether the specified fact is true or false. He cannot be asked what his source of knowledge is for his answer.
Of the interrogatories suggested by the plaintiff in this case thirteen are requests for names and addresses. These are clearly inappropriate. Six more ask whether named or unnamed persons witnessed the fall. This is not a fact which relates to a fact in issue (in the technical sense of being probative thereof): it is a query as to whether there is other evidence of the fall, and is then followed by the query about the address of such witness.
9. Did not any patients witness the Plaintiff's fall?
10. It the answer to the 9th interrogatory is yes, what are the names and addresses of those persons?
11. Did not any other persons witness the Plaintiff's fall?
12. If the answer to the 11th interrogatory is yes, what are the names and addresses of those persons?
13. Was not there any other patients in the A & E Department at the time of the Plaintiff's fall on the 9th Day of July 1998?
14. I the answer to the 13th interrogatory is yes, what are the names and addresses of those persons?
Then there are some questions about the recording of the incident, together with the following
14(sic) Did not a member of the hospital staff (medical, nursing or otherwise discover that the Plaintiff had fallen?
19. Was not a doctor in charge of the Plaintiff's care at the Accident and Emergency Department of Cork University Hospital?
There are five questions about the defendant's knowledge of the plaintiff's history, (including two "why not" questions (22 and 24), followed by a long series of questions about the plaintiff's bed or trolley. 36, 37.
Questions 41 to 44 are missing.
From 45 onwards are eight questions about post accident treatment, and finally, at 60 to 62, three questions about staff shortages. A total of fifty six questions.
Interrogatories must be formulated in such a way as to permit an answer which is a simple affirmative confirmation or the opposite. "Did not. . . ?"
"has not . . .?" etc. is the format specified in the Rules. "Why not?" is not acceptable. Nor is "where is. . ." or "who has . . ."or "what is . . ."? And certainly not "what precautions . . ."?
Of course, the "did not, was not . . ."? test is nothing but a first order test. It is a test of form and not of substance. Satisfying the test is neither a sufficient nor a necessary condition for a successful application. But as a first test, it is a useful indicator as to problems with the substance of the interrogatory. Likely as not, if the interrogatory cannot be answered with a "yes" or "no" the substance of the question is likely to wide of the mark. For example "if not, why not . . ."? is likely, on closer scrutiny, to be query seeking to fish out secondary (therefore, immaterial) facts. And the question "who . . ."? is one seeking the names of potential witnesses, enquiring, in other words, as to evidence rather than seeking factual information. Closer scrutiny may reveal the essence of questions, however formulated, as concerning inferences opinions or the evidence of third parties, none of which is appropriate as the subject matter of an interrogatory. Factual information alone may be sought and only factual information directly probative of material facts in dispute. The highest quality evidence of such facts is, of course, an admission. Admissions are, in that sense, at the extreme end of the spectrum of relevant information. But interrogatories seeking admissions of facts directly and clearly in issue on the pleadings will not be permitted.
There appear to me to be only two interrogatories, properly framed, and concerning facts which are related to material facts in dispute and these are:
21. Was not the Doctor in charge of the Plaintiff's care, at the A & E Department of Cork University Hospital, aware that t he Plaintiff had a history of collapse?
23. Was not the Doctor in charge of the Plaintiff's care, at the A & E Department of Cork University Hospital, aware that the Plaintiff had a fluctuating level of consciousness?
But looking again at the Defence we see that the defendant makes a plea which cannot be advanced by it unless it intends to offer evidence of the plaintiff's weakness and prior collapse "at home". I am of the view that, such being the Defendant's stance, the two interrogatories are concerned with a fact which is effectively not in issue.
Even if I am wrong in rejecting the interrogatories on the technical basis above outlined it would be open to the Court to reject the application out of hand because of the complete failure to establish the existence of a special exigency. In his grounding affidavit the solicitor for the plaintiff says that he sought voluntary discovery and received certain documents by way of response. It should be noted in 1998 the Defendant furnished a full copy of all Cork Hospital notes to the plaintiff's solicitor. (Par. 6). He goes on, at paragraph 9, to say -
"The Defendant has the sole knowledge as to the circumstances, background and nature of the accident herein given the condition and nature of the plaintiff at the time of the accident. I say that it is not revealed in the notes and records that I have received from the Defendant any information as to the circumstances of the accident and I say that this information must be within the remit of the Defendant."
So the plaintiff himself has no knowledge of the material facts, has he not? In making this averment, the plaintiff's solicitor is in effect admitting that his client was drunk and unable to know what he was doing. Something of an "own goal" perhaps?
The term "exigency" means "an urgent need". So says the Oxford dictionary. In the context of litigation the "urgency" refers to the immediacy of the need, the fact that the information is needed ahead of the trial. The information will of course normally be available on cross examination during the trial, but that will be, for the applicant, too late: the trial will be unfair.
In Croften Properties Limited - v - Genport Limited 2001 McCracken J. re worded the test by asking whether "establishing these facts by way of interrogatories is in any way more unjust or prejudiced to the respondent than to call witnesses . . . at the trial".
In Woodfab Limited - v - Collte Teo 200 IR Shanley J. noted that the test might be described (as had been done by Bingham M.R. in Hall - v - Sevalco Limited TLR. 27.3.96) as one of "stringent necessity", and quoted the Master's dictum that:-
"It could not be necessary to interrogate to obtain information or admissions which were or were likely to be contained in pleadings, medical discoverable documents or witness statements unless, exceptionally, a clear litigious purpose would be served by obtaining such information or admissions on affidavit".
Miss Justice Laffoy, in McCole - v - The Blood Transfusion Service Board employed the concept of "clear litigious purpose at this juncture", and applied the test as to whether interrogatories were "essential for the proper presentation of the applicants case that the information be furnished at this juncture", citing with approval Det Danske - v - KDM 1994 2 Lloyd's Reports 534, 537:-
"essential . . . in the sense that if the matter is left until cross examination at the trial that party will or probably will be irremediably prejudiced in his conduct of the trial or the trail may be unduly interrupted or otherwise disorganised by the later emergence of the information".
Note that in respect of interrogatories 31, 32, 33 in the McCole case, Miss Justice Laffoy accepted the respondents submission that some were not necessary in that sense, saying that:
"It seems to me that the matters the subject of the interrogatories are matters to be dealt with in oral evidence by the plaintiffs expert witnesses and through cross examination of the witnesses of the defendant at the trail of the action".
Returning to the source of the test special exigency, namely Costello J. (as he then was) in Mercantile Credit Co. Limited - v - Heelan 1994 ILRM regard must be had to the "common example" which he set out in the judgment, as follows (p. 410)-
"In a road traffic accident an injured plaintiff has to establish his claim by oral evidence and will not normally be allowed to deliver interrogatories for this purpose. But if the injuries have caused a loss of memory so that a plaintiff cannot recall the accident and there are no witness interrogatories will be allowed and affidavit evidence permitted relating to the issue of negligence and damages so that justice may be done".
In the instant case, the Court really has no clear evidence as to what the plaintiff can recall of his admission to hospital and his fall. Surely he can give evidence that he was uninjured when he arrive and injured when he left? Surely (the defendant's denial notwithstanding) the Hospital's records record his being treated for the injuries he complains of, and do not record his as complaining of such injuries on his arrival? Surely the Court can, by inference if necessary, conclude that the defendant did not take reasonable care for the plaintiff?
In this application, the plaintiff has not established that he cannot prove his case at trial unless he now gets the information he seeks by way of interrogatories. There is no "special exigencies" of the sort envisaged by Costello J., Laffoy J., Shanley J. or McCracken J.
I refuse the application.