Goode Concrete v CRH Plc, Roadstone Wood Ltd and Kilsaran Concrete

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 31 March 2022
• Neutral Citation: [2022] IEHC 189
• Court: High Court
• Docket Number: [2010 No. 10685 P]

Between:

Goode Concrete

Plaintiff

and

CRH Plc, Roadstone Wood Limited and Kilsaran Concrete

Defendants

[2022] IEHC 189

[2010 No. 10685 P]

THE HIGH COURT

Interrogatories – Strike out – Security for costs – Defendants seeking to strike out certain interrogatories that had been delivered by the plaintiff – Whether the interrogatories were oppressive

Facts: The defendants, CRC PLC, Roadstone Wood Ltd and Kilsaran Concrete, applied to the High Court to strike out certain interrogatories that had been delivered by the plaintiff, Goode Concrete. There were related applications for security for the costs of answering the various interrogatories, in the event that the strike-out applications were unsuccessful or successful in part only.

Held by Barrett J that: (i) the interrogatories were unreasonable and prolix; (ii) many of the questions posed would involve a great deal of time being expended in giving answers; (iii) the costs arising for the defendants in terms of answering the questions posed would be enormous; (iv) many of the requests were impermissible requests for documents or categories of documents; (v) many of the requests related not to identified documents but sought categories of documents relating to an issue; (vi) many of the questions posed were irrelevant to the facts in issue on the pleadings; (vii) a large number of the questions posed related to granular details which involved matters of evidence; (viii) some of the questions involved impermissible attempts to ascertain the identity of witnesses; (ix) a large number of the interrogatories could not be answered ‘yes’ or ‘no’ or by some other short statement of fact but required narrative; and (x) the interrogatories were oppressive.

Barrett J held that the court would strike out, in their entirety, the delivered interrogatories, so it was not necessary to treat with the applications for security for costs. It seemed to the court that there was no reason presenting why costs should not be ordered in favour of each of the defendants.

Applications granted.

JUDGMENT of Mr Justice Max Barrett delivered on 31 ^st March, 2022 .

I. Facts

1 . The background to these proceedings has helpfully been summarised in the written submissions of the first and second defendants, the following extracts from which are respectfully adopted by the court as a true statement of the factual background to the applications now presenting:

“Factual background

9….. [T] he proceedings were commenced on 19 November 2010 and were originally entered into the Competition List of the High Court by Order dated 26 November 2010.

10. On 13 November 2012, Mr Justice Cooke recused himself from any further involvement in the proceedings. By that time, Mr Justice Cooke had made three Orders, all of which were appealed by the Plaintiff. By Orders dated 10 February 2016, the Supreme Court allowed the Plaintiffs' appeals.

11. Following the determination of the Supreme Court appeal, discovery motions were issued by the parties. By Orders dated 31 October 2017, the High Court made an order for discovery against the Plaintiff and against the CRH Defendants and the Third Named Defendant (‘Kilsaran’).

12. The CRH Defendants issued a motion for security for the costs of making discovery against the Plaintiff in December 2016. This motion was adjourned pending the determination of the discovery motions and has not yet been heard and determined. A replying affidavit was delivered by the Plaintiff to that motion in January 2017.

13. The Plaintiff appealed the discovery orders to the Court of Appeal. By Orders dated 4 March 2020, the Court of Appeal dismissed the Plaintiffs appeal, subject to a variation of the High Court Order in respect of category 5 of the discovery to be provided by the CRH Defendants and made an order for costs in favour of the CRH Defendants. This order for costs is not subject to a stay.

14. The Plaintiff then allowed the proceedings to become entirely dormant until 10 February 2021, when new solicitors and counsel came on record for the Plaintiff….

15. [Thereafter, the]… Plaintiff issued a motion to re-admit the proceedings to the Competition List, which was not grounded on affidavit and did not specify the directions sought. That motion, having issued without a Notice of Intention to Proceed having been served, was struck out and a second motion to enter the proceedings to the Competition List issued.

15. After the proceedings were re-admitted to the Competition List, the Plaintiff indicated through its counsel that the Plaintiff no longer required the Defendants to make discovery at all. This position was adopted, notwithstanding that the Plaintiff had spent years appealing the discovery Orders made by the High Court to the Court of Appeal and appears to have been prompted by the indication by the Defendants of their intention to proceed with the motion for security for the costs of discovery.

16. Counsel for the Plaintiff indicated that, instead of requiring the Defendants to make discovery, the Plaintiff intended to deliver interrogatories.

17. On receipt of the interrogatories, the reason for this approach became clear. The interrogatories delivered contain extensive requests for documents and evidence and constitute a[n]… impermissible attempt to obtain discovery by way of interrogatories.

18. In addition, the Plaintiffs have [thus far] failed to discharge orders for costs made in favour of the CRH Defendants”.

2 . The form and substance of the interrogatories that have been delivered is remarkable. They run to 873 pages. They consist of approximately 8,000 individual questions. Many of the ‘interrogatories’ – close on 3,000 of them – are actually requests for documents or categories of documents that are, in substance, requests for discovery. A lot of the interrogatories sought are irrelevant, having no connection to any issues in dispute on the pleadings. Some seek granular details of matters of evidence, or the identity of witnesses, or privileged communications. The majority of the interrogatories are not capable of a ‘yes’ or ‘no’ answer. Many expressly require narrative or elaboration or cannot be answered without conditionality. A sample portion of the interrogatories is set out in the Appendix hereto. However, the court should note at this juncture its respectful but complete disagreement with the following averment in an affidavit sworn for the plaintiff in the context of the within applications:

“ The Interrogatories delivered relate to matters dealt with in the pleadings, mainly to the large numbers of tenders contained in the Schedule. Almost all the Interrogatories are required to be answered with a simple ‘yes’ or ‘no’. In a very small number of instances, where the answer is ‘yes’, documentation is sought; this is documentation which would go to support a fact.”

3 . These assertions are, with all respect, just wrong when one has regard to the substance of the interrogatories, a sample number of which, as stated, are considered in the Appendix.

II. Law

i. Applicable Rules of Court

4 . Order 63B(8) of the Rules of the Superior Courts (‘RSC’) provides, in material part:

“ A party to proceedings entered in the Competition List may at any time after delivering his statement or points of claim … deliver interrogatories in writing for the examination of any other party to the proceedings…provided also that interrogatories which do not relate to any matters in question in the proceedings shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.”

5 . Two points might usefully be made regarding the just-quoted text.

6 . First, it is not necessary to apply for leave to deliver interrogatories.

7 . Second, the power is to deliver interrogatories in writing for the examination of “ any other party”. The significance of that phrase has acquired a significance in these proceedings. This is because in its interrogatories, the plaintiff has purported to direct which company officers within the defendants should answer the interrogatories. That is not appropriate. This is because of O.31(5)/RSC, which provides as follows:

“ If any party to a cause or matter be a body corporate or a joint stock company, whether incorporated or not, or any other body of persons, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation, company, or body, and an order may be made accordingly.”

8 . As can be seen, the leave of the court should have been obtained if the intention was (and it was) to deliver interrogatories requiring a particular corporate officer to answer those interrogatories. Absent such leave, the normal arrangement applies whereby a corporate entity answers via its secretary.

9 . Moving on, Order 63B(9)/RSC provides that interrogatories delivered in accordance with rule 8 must be in a prescribed (negative) form. The reason for this was explained as follows by Walsh J. in ( J & L.S. Goodbody Ltd v. Clyde Shipping Co. Ltd Unreported, Supreme Court, 9th May, 1967):

“ The form set out in the Appendix requires that all interrogatories should be phrased in the form of a negative question … Interrogatories are supposed to be confined to facts which there is some reason to think are true and the negative form of the question is intended to emphasise assertion as distinct from unfounded query.”

10 . It is, of course, always open to a party to elect of its own volition to answer an interrogatory that it is not obliged to answer and it is now common practice in competition law proceedings for parties to answer interrogatories that are not posed in the negative. Nevertheless, even in competition law proceedings, the principle that Walsh J. identifies...