Katie Nugent

In Ashling O’Sullivan (A minor) suing by her mother and next friend Grace O’Sullivan v Michael O’Riordan and Mercy University Hospital Cork [2023] IECA 165, the Court of Appeal recently considered a decision of the High Court which had granted liberty to the plaintiff to deliver eight interrogatories and refused liberty to deliver 21 others which had been sought by the plaintiff. The case involves a clinical negligence claim by the plaintiff in respect of treatment provided at the second named defendant hospital while under the care of the first defendant.

The basis for interrogatories

Order 31 of the Rules of the Superior Court provides for the use of interrogatories which are a series of questions that a party to a claim may ask of the other side on oath. A copy of the draft interrogatories which are proposed to be delivered are submitted with the notice of application seeking to deliver them and this is considered by the court. The court will grant leave in respect of the interrogatories as are necessary for the fair disposal of the case or for saving of costs.

A blanket defence?

The defendants had delivered a defence putting the plaintiff on proof of both negligence and injury. At paragraph 1 (c) of the defence, it was pleaded as follows:

The application to the High Court was grounded on the affidavit of the plaintiff’s solicitor who had stated that the defendants delivered a “blanket defence” and have denied the entire narrative as pleaded despite the fact that it was stated that most, if not all, ought to be non-controversial.

In the Court of Appeal, Mr Justice Noonan considered the manner in which the defendants had pleaded their case and noted that it had particular significance in the context of the application for interrogatories. He stated that the reference to the defence as a “blanket defence” was not “an unfair characterisation”. In referring to the defendant’s plea, he noted that it is impossible to understand what is meant by this or how it can be considered as an admission of anything and stated that it presumably called for some form of reconciliation between what is pleaded and what is contained in the plaintiff’s medical records.

Pleading with particularity

Mr Justice Noonan then referred to some recent caselaw which had discussed the issue of pleading with particularity. In Crean v Harty [2020] IECA 364, Collins J referred to sections 12 and 13 of the Civil Liability and Courts Act 2004 and noted that these sections are “clearly intended to ensure that parties (including defendants) plead with greater precision and particularity so that, in advance of trial, the actual issues between the parties will be clearly identified”. It was also noted that a “straight denial” cannot be regarded as complying with the requirements of the Act.

The court also referred to Morgan v ESB [2021] IECA 29 where Collins J noted that “plaintiffs and defendants are required to state clearly and specifically what their claim (or defence) is and identify the basis for it in their pleading and must then verify that claim (or that defence) on affidavit”.

Mr Justice Noonan noted that it was unsurprising that the plaintiff would seek to avail of interrogatories to the fullest extent when faced with such “an uninformative defence”. The particular relevance of interrogatories in clinical negligence cases was noted where it was stated that more often than not, the plaintiff will have little or no knowledge of what befell them while under the care of the defendant(s).

Decision

Following on from this, the Court of Appeal then proceeded to reformulate a number of the interrogatories sought. It was noted that it is not usually the function of the court to redraft interrogatories which are not properly phrased in the first instance but this approach was adopted here in circumstances where the trial judge did so to avoid the necessity of a possible further motion arising.

Comment

This decision provides a further reminder to plaintiffs and defendants of the importance of compliance with sections 12-14 of the Civil Liability and Courts Act 2004 when finalising their pleadings. Practitioners also need to be mindful of the requirements of Section 14 of the Civil Liability and Courts Act and the consequences for their clients swearing any assertions or allegations contained in the pleadings and ensuring that clients are aware that it is an offence to swear a misleading or false affidavit. This was a feature of the recent Court of Appeal decision in Naghten v Cool Running Events Limited [2021] IECA 17 where the director of the company who had signed the affidavit of verification distanced himself from the pleas made in the defence under cross-examination.

Mr Justice Noonan referred to the comments made in the case of McCabe v Irish Life Assurance PLC [2015] 1 I.R. 346 where it was stated that the delivery of interrogatories is a pre-trial disclosure procedure which is greatly underutilised despite strong encouragement from the Supreme Court as far back as the judgment of Walsh J in J and L.S Goodbody Limited v The Clyde Shipping Company Limited (Unreported, Supreme Court, 9 May 1967).

Following the recent decision of the Court of Appeal which endorsed the use of interrogatories we may see greater use of interrogatories in cases where they may assist in narrowing the matters at issue, where they are relevant and necessary for the fair disposal of the cause or for saving costs and where they are amenable to yes/no answers and particularly in cases where there may be a dispute as to the matters pleaded.

• Katie Nugent is an associate in the healthcare team at Hayes solicitors.