INTERROGATORIES

1. Introduction

The Courts of Equity evolved a method of proof to which the general name “discovery
was given and which comprised two procedures:

(1) discovery of deeds and documents; and

(2) discovery of facts.

The former procedure was the foundation of discovery of documents in the modern sense
as dealt with by Order 24 of the Rules of the Supreme Court, 1964 (“RSC”). Under the
latter procedure a person might be ordered to answer as to the existence of some fact
within his knowledge and relevant to a dispute; this form of discovery was the origin of
interrogatories administered to another party to an action under the provisions of order
26.

There are two different ways in which interrogatories may be administered.

Interrogatories served without a court order are known as “Interrogatories without order”,
Interrogatories which are served with the leave of the court or are to be answered
pursuant to a court order are known as “Ordered Interrogatories.”

2. The nature of interrogatories

The primary requirement for a proper interrogatory is that it should relate to a matter in
question between the parties concerned and that it should be necessary either for
disposing fairly of the cause or matter or for saving costs. In the event of a dispute
between the parties it is a matter for the discretion of the court to decide whether or not
an interrogatory is properly framed or served. Some general rules can be suggested but it
is impossible to frame a helpful definition of what is a proper interrogatory.

Nevertheless, when considering raising interrogatories it may be useful to pose the

following questions:

(1) Is this an appropriate stage in the proceedings to raise interrogatories?

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 (2) Is the proposed question relevant to an issue between the interrogator and the
party to be interrogated?
(3) Does the question assist in establishing a fact which needs to be established?
(4) Is the question referable to a fact of whose existence reasonable grounds for belief
can be shown?
(5) Is the question framed with such precision and clarity that a clear and unequivocal
answer can be given?
(6) Is it clear that the question does not fall within the categories of question which are,
on the authorities, objectionable?
(7) Is it clear that the question goes to a fact in issue and not to the evidence which
goes to prove that fact?

If the answer to these questions is “yes”, then the interrogatory can be raised with some
confidence that a good case can be made out if the interrogated party seeks to object.

3. Parties between whom interrogatories may be served

A party may serve interrogatories on any other party provided that the interrogatories
relate to a matter in question between those two parties. Thus, a party cannot interrogate
another party unless there is an issue between them, so a plaintiff cannot interrogate a
defendant upon an issue which lies only, between that defendant and a third party, and
the defendants cannot interrogate each other unless there is an issue between them by
reason of the service of a third party or contribution notice.

4. The stage when interrogatories may be raised

The Rules are silent as to the stage in proceedings when interrogatories may be served,
but it is unusual for them to be allowed before the close of pleadings since the issues
between the parties are not established until all the pleadings have been served. Further,
interrogatories are not usually sought until after discovery has taken place since the
interrogating party may have difficulty in establishing that the interrogatories are
“necessary” if he cannot satisfy the court that the answer will not appear in the other
party’s documents. Interrogatories are therefore normally raised after discovery of

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 documents but before setting down. If “interrogatories without order” are served too early
the interrogating party may be penalized in costs on an application by the other party for
an order that the interrogatories be withdrawn. If they are served at a late stage and are
likely to cause delay or difficulties in listing, then the objecting party is more likely to
receive a sympathetic hearing in the court on an application for their withdrawal.

5. Interrogatories without order

Previously, it was necessary to obtain the leave of Court to serve interrogatories but now
a party to a cause or matter may serve upon any other party interrogatories relating to
any matter in question between the applicant and that other party which are necessary
either for disposing fairly of the cause or matter of for saving costs. Interrogatories so
served are called “interrogatories without order”. The interrogating party must state at the
end of the interrogatories a period within which they are to be answered. Where the party
to be interrogated is a body corporate or unincorporated there should be added at the
end of the interrogatories a statement as to which officer or member they are to be
served upon. If the interrogatories are to be served on two or more parties there should
be added at the end a note specifying which of the interrogatories each party is to
answer, and if they are to be answered by an agent or servant a note identifying the
servant or agent concerned. “Interrogatories without order” may be served on a party not
more than twice, and they may not be served on the state. Answers to “interrogatories
without order” must be given by affidavit unless the court otherwise orders.

Interrogatories without order have to be served within the time allowed in the order for
directions made by the Judge under Order 19 rule 2 (e) of the High Court Rules. Thus,
interrogatories have to be served within the specified period.

6. Objection to interrogatories without order

A party who objects to answering some or any “interrogatories without order” which have
been served on him may within fourteen days of their service apply by summons on
notice to the judge for orders that the interrogatories be varied or withdrawn. If an
interrogated party fails to make such an application within the specified period he will be

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 held to have accepted the interrogatories as a whole, and will therefore be required to
answer each interrogatory, and to serve answers within the period specified for the reply
in the request. Therefore, if the interrogated party objects to any part of the request he
will have to apply for orders for variation or withdrawal.

If a party objects to answer an interrogatory on the grounds of privilege he may take the
objection in his answer, and this is so in respect of both “interrogatories without order”
and “ordered interrogatories”.

If a party wishing to apply for an order for variation or withdrawal of “interrogatories

without order” fails to make the application within the specified period, the application can
still be lodged but it will have to be coupled with an application for the Court to exercise
its general discretion to extend the time for the filing of the application.

In determining the application, the Court is required to take into account any offer made
by a party to give particulars, make admissions or produce documents relating to any
matter in question.

7. Ordered interrogatories

“Ordered interrogatories” is the term used in the rules to define interrogatories served
pursuant to an order giving leave or made by the High Court. An application for leave is
necessary if it is desired to serve interrogatories on the state or where a party has already
been served with “interrogatories”.

Application for leave is made by summons, or notice.

8. Answers to interrogations

Answers to “interrogatories” must be by affidavit unless the Court orders otherwise on an

application for variation or withdrawal. In the case of “ordered interrogatories” the
answers will normally be ordered to be by affidavit. The general practice as to the service
of affidavits will thus apply where answers are by affidavit whether the answers be to

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 “interrogatories” made under Order 19 rule 2 (e) of the HCR or otherwise and in
consequence the affidavit must be filed with the Court.

Answers should be drafted to give as clear and precise a reply as possible to the specific
question in the interrogatory. The answer must be given to the best of the deponent’s
knowledge and belief, and so a reply “I do not know” may well not be sufficient. A party
must always use such means of knowledge as are available to him although this does not
mean that he has to embark on a roving enquiry from all possible sources. Answers
which are prolix, evasive, or in any similar way inappropriate may be ordered to be
removed from the file although they are more likely to be treated as insufficient.

9. Failure to comply and insufficient answers

Where a party answers “interrogatories” insufficiently the interrogating party may ask for
further and better particulars of the answers given.

Where a party answers insufficiently interrogatories which class as “ordered

interrogatories” the court may make an order requiring him to make a further answer
either by affidavit or by way of an oral examination. Oral examinations are rarely ordered,
but in any such examination the issue is the sufficiency of the answer and questions put
in the examination must be restricted to those which may procure a sufficient answer.

If a party fails to answer “interrogatories whether served pursuant to the order for
directions made under Order 19 of HCR” or “ordered Interrogatories” or fails to comply
with a request for further and better particulars of answers or with an order for further
answer to “ordered interrogatories”, the Court may make such an order as it thinks fit
including in particular an order that the action be dismissed or the defence be struck out
and judgment entered accordingly. Further, where there is failure to comply with an order
for “ordered interrogatories” or for further answer to “ordered interrogatories” the party in
contempt is liable to committal.

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10. Interrogatories against a body of persons

Where a party is a body of persons, whether corporate or incorporate, being a body

which is empowered to sue or be sued in its own name or in the name of an officer or
other person, interrogatories may be served upon that party for answer by an officer or
member.

Interrogatories, which are served on such a party must contain a note at the foot of the
interrogatories specifying the officer or member upon whom the interrogatories are to be
served, i.e. by whom they are to be answered. In the case of a Local Authority the Chief
Executive or Clerk or his equivalent is usually the appropriate person to give answers. In
the case of a company the secretary is normally the appropriate person. There may,
however, be special circumstances where some officer other that the secretary may be
more appropriate, for example where the dispute concerns a contract in which a
particular director has been chiefly involved. Generally, it is for the interrogated company
to decide who is the best person to give the answers on behalf of the company.

Where a company in liquidation is suing or being sued by its liquidator, interrogatories

may be served for answer by the liquidator.

11. Use of interrogatories at trial

A party may put in evidence at the trial of a cause or matter, or of any issue therein, some
only of the answers to interrogatories, or part only of an answer, without putting in
evidence the rest; but the Court may look at the whole of the answers and, if of opinion
that any other answer or part of any answer is so connected with an answer or part of an
answer used in evidence, that one ought not to be so used without the other, may direct
that the other answer or part of an answer be put in evidence. It is open to a party putting
in the answers to call other evidence to contradict them and he is not, of course, bound
by the answers given to the interrogatories.