Joseph McCabe v Irish Life Assurance Plc

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 09 November 2015
• Neutral Citation: [2015] IECA 239
• Docket Number: [C.A. No. 222 of 2015]
• Court: Court of Appeal (Ireland)
• Date: 09 November 2015

[2015] IECA 239

THE COURT OF APPEAL

Kelly J.

Irvine J.

Hogan J.

222/2015

McCabe v Irish Life Assurance plc & Anor

Joseph McCabe and Clara McCabe

Plaintiffs/Respondents

And

Irish Life Assurance plc

Defendant/Appellant

And

Danske Bank a/s trading as National Irish Bank

Third party

Interrogatories – Breach of duty – Disclosure – Appellant seeking leave to deliver interrogatories – Whether requiring the respondents to answer the interrogatories is oppressive or unjust

Facts: The plaintiffs/respondents, Mr McCabe and Ms McCabe, sought payment to them of a benefit of €250,000 on foot of a policy of life assurance entered into in November, 2005, in respect of which one of the lives insured was Mrs McCabe, the deceased. The plaintiffs are the widower and daughter respectively of the deceased. The deceased died in August, 2009. Proceedings were commenced by plenary summons in April, 2011. The defendant/appellant, Irish Life Assurance plc, contended that the contract of insurance was one of utmost good faith and that the deceased was under a duty to disclose to it all material facts. It was contended that the deceased breached that duty. The reply to defence and counterclaim denied that the deceased acted in breach of duty to disclose all material facts and contended that if the deceased failed to disclose the alleged material facts that did not constitute material non-disclosure. The plaintiffs said that they awaited strict proof of the completion of a proposal form by the deceased, relied upon by the defendant, and contended that the proposal form was completed by Danske Bank, its servants or agents, who at all material times acted as broker and agent for the defendant. Danske Bank was joined as a third party to the litigation. In an effort to narrow the issues in dispute between the parties, thus shortening the trial and saving costs, the defendant, in November, 2013, served a notice to admit facts on the plaintiffs. The plaintiffs" reply was a bare refusal to admit the facts. The defendant wrote enclosing draft interrogatories dealing with the same issues that were sought to be dealt with in the notice to admit facts. Faced with this failure to engage by the plaintiffs, a motion was brought seeking leave to deliver the interrogatories in question. In April, 2015, the High Court refused permission to deliver any of the interrogatories. The defendant appealed from that judgment to the Court of Appeal.

Held by Kelly J that the plaintiffs" refusal to cooperate was an unacceptable approach to the conduct of litigation. Referring to Woodfab Ltd v Coillte Teoranta [2000] 1 IR 20, Kelly J held that the interrogatories sought to be delivered served a clear litigious purpose; as a matter of probability they would save significant costs and shorten the trial. Kelly J was unable to see how it could be said that requiring the plaintiffs to answer the interrogatories would be either oppressive or unjust. Kelly J was of the opinion that minor adjustments needed to be made to the interrogatories in order to make the questions posed crystal clear and to enable equally clear answers to be sworn to by the plaintiffs. Kelly J set out the amended questions in a schedule to this judgment.

Kelly J held that the appeal ought to be allowed and the order of the High Court set aside.

Appeal allowed.

Introduction

1 1. It is almost 50 years since the Supreme Court, in an unreported judgment of the 9 ^th May, 1967, in the case of J. & LS. Goodbody Limited v. Clyde Shipping Company Limited encouraged a greater use of interrogatories in High Court litigation. Walsh J., speaking for the court, said this:-

"I would also like to express my agreement with the view expressed by the learned High Court judge that interrogatories ought to be used more than they are. This procedure and all other pre-trial procedures which are available should be encouraged because anything which tends to narrow the issues which have to be tried by the court and which will reduce the area of proof must result in considerable saving of time and money which cannot but be beneficial to the parties and to the administration of justice in general."

2 2. That judgment of the Supreme Court is largely forgotten and the exhortation contained in it is for the most part ignored.

3 3. Often the delivery of interrogatories can obviate the necessity for expensive and time consuming discovery, can dispose of issues prior to trial, can lessen in the number of witnesses and result in an overall shortening of trials. In many cases which lend themselves to the delivery of interrogatories the procedure is simply ignored.

4 4. Under the provisions of O. 31, leave of the court is required for the delivery of interrogatories except in cases alleging fraud or breach of trust. When the Commercial Court was set up in 2004, its rules permitted parties in commercial list litigation to deliver interrogatories without leave of the court. That procedural change gave rise to a much more extensive use of interrogatories in Commercial Court proceedings. They have been beneficial in achieving the desired results.

5 5. Since the decision of the Supreme Court in Goodbody's case, litigation has increased enormously in quantity, complexity and cost. It is high time for the exhortation of the Supreme Court of 1967 to be acted upon.

6 6. In that decision the Supreme Court made it clear that:-

"One of the purposes of interrogatories is to sustain the plaintiff's case as well as destroy the defendant's case and that interrogatories need not be confined to facts directly in issue but may extend to any facts, the existence or non existence of which is relevant to the existence or non existence of the facts directly in issue. Furthermore, the interrogatory sought need not be shown to be conclusive on the question in issue, but it is sufficient if the interrogatory sought should have some bearing on the question and that the interrogatory might form a step in establishing the liability. It is not necessary for the person seeking leave to deliver the interrogatory to show that it is in respect of something he does not already know."

7 7. Those observations also deserve to be brought to the attention of practitioners since many appear to have a very restricted view of the circumstances in which interrogatories may be used. That may in part explain why they are used so infrequently. It is clear from the observations of Walsh J. that robust questions may be posed on a much wider basis than is generally appreciated.

8 8. Having made these observations, I turn to the issues which arise on this appeal from a refusal by Barr J. in the High Court to permit the delivery of interrogatories in this case.

This case

9 9. These proceedings were commenced by plenary summons issued on the 15 ^th April, 2011. The principal relief which is sought is payment to the plaintiffs of a benefit of €250,000 on foot of a policy of life assurance entered into in or about November 2005, in respect of which one of the lives insured was Marie McCabe (the deceased). The plaintiffs are the widower and daughter respectively of the deceased. The deceased died on the 26 ^th August, 2009.

10 10. The defendant contends that the contract of insurance was one of utmost good faith and that the deceased was under a duty to disclose to it all material facts. In breach of that duty it is contended that the deceased did not disclose the following facts, each of which was a material fact of which she was aware, but the defendant was unaware. The facts alleged at para. 9 of the defence are as follows:-

a "(a) On the 10 ^th May, 1984, the deceased was admitted to Adelaide and Meath Hospital, Tallaght, Dublin 24, under the care of Dr. Gerald H. Tomkin, Consultant Physician. After admission the deceased underwent treatment for possible anorexia nervosa and was discharged on the 21 ^st May, 1984.

(b) In 1995 the deceased was admitted to Cavan General Hospital following an overdose and was referred to Dr. Vincent Russell, Consultant Psychiatrist.

(c) On the 21 ^st December, 2000, the deceased was noted by her GP, Dr. William Hanly, to have a history of alcohol dependency.

(d) On the 7 ^th February, 2001, the deceased was admitted to Cavan General Hospital following a head injury sustained while under the influence of alcohol.

(e) On the 23 ^rd February, 2001, the deceased attended Dr. McCaffrey, Baileborough Clinic, regarding alcohol abuse and was prescribed Librium.

(f) In October 2001, the deceased was admitted to Aiséirí Treatment Centre, Cahir, Co. Tipperary and completed a 30 day in-patient detoxification programme.

(g) From 2000 until September 2005, the deceased remained under the care of Dr. Vincent Russell, Consultant Psychiatrist, in relation to a long standing history of psychiatric problems, and was prescribed medications on numerous occasions during this period, including Seroxat, Xanax, Paroxetine, Dalmane, Lexotan, Zimovane, Efexor."

These particulars are direct quotations from the defence and counterclaim of the defendant.

11 11. Furthermore, the defendant pleads that the deceased completed or signed a proposal form in which she failed to disclose the following facts each of which was material and of which she was aware, but the defendant was not.

a "(a) The deceased incorrectly replied 'No' to the question 'Are you currently unwell or do you suffer from any physical defect or is there any ailment or disease to which you have a tendency?'

(b) The deceased incorrectly replied 'No' to the question, 'Are you currently taking prescribed drugs, medicines, tablets or other treatment or have you taken such a course lasting more than two weeks within the past year?'

(c) The deceased incorrectly replied 'No' to the question, 'Have you been referred by...