The High Court Assistant Registrar (“AR”) summarised helpful guidance on when interrogatories may be ordered under Order 26, rule 1 of the Rules of Court.
Interrogatories is a form of discovery of facts (and not documents) to be utilised early in the proceedings to focus the dispute and save costs.
Interrogatories are more readily allowed where (at [13]):
“(a) they direct the parties’ attention to the central issues in contention at an early stage, thus reducing the need for counsel to focus time and effort on peripheral and uncontested matters;
(b) they have direct bearing on the issues in dispute, and will ease the subsequent passage of cross-examination by delineating the precise matters in contention;
(c) there would be real, substantial and irremediable prejudice if the interrogatories are refused (although these are not prerequisites to finding that interrogatories are necessary);
(d) they can be answered without difficulty and can potentially dispose of entire lines of questioning, or even the need to call certain witnesses; or
(e) the information sought, if introduced only in cross-examination, may catch opposing counsel unaware and create the need for adjournments and a flurry of interlocutory applications to address the new developments.”
Interrogatories may more readily be refused where (at [14]):
“(a) they are oppressive in nature, in that they exceed the legitimate requirements of the circumstances at hand, or impose a burden on the interrogated party that is entirely disproportionate to the benefit to be gained by the interrogating party;
(b) they amount to an attempt to fish for information, in the hope of stumbling upon something that will support the interrogating party’s case;
(c) they are of a more ancillary nature that are more appropriately sought in cross-examination;
(d) they concern matters which a witness will testify to at trial;
(e) they are intended merely to obtain the identities of witnesses and documents which the other party intends to produce; or
(f) they seek mere evidence which does not form any part of the material facts in dispute.”
The Court accepted that interrogatories can be issued in relation to authenticity in the event that authenticity is disputed (Swain v Hest Australia Ltd v Anor [2003] TASSC 104): at [20].
The general proposition that interrogatories should not be allowed to seek admissions of fact from a witness who would be attending at trial ought not be interpreted as an absolute prohibition of interrogatories against all persons who would be witnesses at trial, regardless of the circumstances at hand. In particular, the proposition should not be taken to preclude the administering of interrogatories, where allowing the same would be entirely in line with O 26 r 1(1) of the Rules of Court, viz, necessary for the fair disposal of the matter or for saving costs: at [21].
In Foo Ko Hing v Foo Chee Heng [2002] 1 SLR(R) 664 (HC), the High Court allowed the administration of interrogatories on a non-party witness (pursuant to O 26A r 1 of the Rules of Court) notwithstanding that he would be giving oral testimony at trial. The court’s rationale for doing so was to avoid disruptions to the trial, in view that the witness in question was not willing to provide an affidavit of evidence-in-chief: at [22].
The Court allowed part of the interrogatories in this case for several reasons.
Allowing the “Primary Queries” now would potentially dispose of entire lines of questioning and expert inquiry. The answers to the Primary Queries will provide clarity, in advance of trial, on the precise dispute in relation to an important aspect of authenticity that may otherwise involve the furnishing of a large range of evidence, including expert evidence. This would thus avoid incurring costs. See [24].
There is little reason to believe that the Defendant would offer the relevant information in his affidavit of evidence-in-chief. Furthermore, provision of information only in the affidavit of evidence-in-chief would be too late. See [25].
While the information sought in the interrogatories may be potentially obtained from other witnesses, the Defendant’s responses may well be in the nature of admissions: at [26].
The Defendant would not face “insurmountable difficulties” in answering the interrogatories, and allowing such interrogatories would not cause prejudice to his challenge to authenticity of the recordings: at [27].
