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1. This is an application pursuant to Order 31 of the Rules of the Superior Courts authorising the defendant’s to deliver interrogatories to the plaintiffs in relation to the defendants counterclaim in these proceedings. In these proceedings it is alleged by the defendant that certain telephone calls were made by the plaintiff, its servants or agents to the South East Regional Crime Squad of the British Police which were of a malicious, untrue and defamatory nature. One of the issues which undoubtedly arises in the case is, assuming the calls were made, whether they were made by somebody acting as servant or agent for the plaintiff. The defendant has sought and received third party discovery from Eircom listing all other telephone calls made from the relevant lines on the same day as calls are alleged to have been made to the South Eastern Regional Crime Squad, and hopes to assist its case by showing that at least some of these calls were made to persons who had some connection with the plaintiff, from which no doubt I will be asked to draw the inference that the telephone lines were being used by persons doing business on behalf of the plaintiff, although the lines are not in the plaintiff’s name. The defendant believes it has identified some twenty eight of these telephone numbers, and now seeks to raise interrogatories to oblige the plaintiff to confirm under oath the owners of these telephone lines and their connection with the plaintiff.

2. The circumstances in which leave to deliver interrogatories should be granted were considered in some depth by the Supreme Court in the unreported case of J & L S Goodbody Ltd. v. The Clyde Shipping Co. Ltd. (Judgment delivered on 9th May, 1967). In that case Ó Dálaigh C. J. said at page 3 of the judgment:-

3. There is no doubt that, as pointed out by Costello J. in Mercantile Credit Company of Ireland v. Heelan [1994] 2 IR 105, that the use of interrogatories is contrary to the general principle that cases should be heard on oral evidence, and also, as he said at Page 116:-

4. It also must be borne in mind that interrogatories, like discovery, must not be used as a fact finding or fishing exercise. It is for this reason that traditionally, and indeed in the appendix to the Superior Court Rules, the form that interrogatories should take is to commence the interrogatory with the phrase “Is it not the case that”.

5. In the present case, therefore, the matters which I have to consider are, firstly whether they are necessary either for disposing fully of the matter or for saving costs, secondly whether they are relevant in the sense as explained by Ó Dálaigh C. J. in the judgment quoted above, thirdly whether they should not be allowed because they are simply fishing and fourthly whether in any event the plaintiffs would be prejudiced unfairly.

6. It is strongly urged by the defendant that there would be a considerable saving of costs, as if their queries are not answered they would have to call each of the people that they believe to be the holders of the relevant telephone lines and ask questions to them. In reply, the plaintiff says that a witness already called in this action, namely Miss Caroline Devine, was the secretary of the company, and might well have the answers to most of the interrogatories, and that she could be recalled.

7. This is a very strange and unusual case. The case has been part heard, and it is true that Miss Devine was called as a witness by the defendants. The fact remains that she is the person the defendants believe is most likely to have made the telephone calls in issue in the case, and she certainly would not be a co-operative witness, and almost certainly would have to be called under subpoena, and the defendants would not know which of the interrogatories she could answer and which she could not answer. I have no doubt that considerable time and cost would be saved by the delivery of interrogatories, provided they are permissible under the other headings I have to consider.

8. The second point I have to consider is whether they are relevant. The interrogatories refer to a number of different people, some of whom are relatives of officers of the plaintiff, others of whom are undoubtedly connected to the plaintiff, as for example the solicitors on record for them in the present action, while others are to persons who may or may not be connected to the plaintiff. The answers to the interrogatories will not in themselves determine whether the specific calls made on the relevant days were made by somebody as servant or agent of the plaintiff, but I am satisfied that, in the words of Ó Dálaigh C. J.:-

9. I am going to be asked to draw inferences from the replies to the interrogatories, and I think they are clearly relevant for that purpose.

10. The third question is whether the interrogatories could be considered to be too wide or to be simply fishing. Insofar as that may be so, they would have to be disallowed, and I will deal with that matter below.

11. The fourth question, and an extremely relevant one is whether the answering of the interrogatories would unjustly prejudice the plaintiff. It has been strongly argued that, in effect, this is an attempt to undermine the evidence already given by Miss Devine, which was not particularly helpful to the defendants. I cannot see that establishing these facts by way of interrogatories is in any way more unjust or prejudicial to Miss Devine or to the plaintiff than to call the twenty eight persons named as witnesses. There is no doubt that the defendant would be entitled to do this, and I certainly know of no principle whereby, once a witness for a party gives evidence of a certain fact, that another witness may not be heard to give contrary evidence, even if both witnesses are called by the same party. Accordingly in my view the interrogatories, insofar as they are proper interrogatories to be asked, should be allowed.

12. With regard to the individual interrogatories, I shall deal firstly with an amendment which has been requested in similar form to a number of interrogatories. To take an example, proposed interrogatory 5.2 reads:-

13. It is sought to add to this the words “and if so which one”. There are a number of occasions where alternatives have been sought in this form, and I will propose to allow them.

14. On the other hand there are a considerable number of the interrogatories which in my view exceed the permissible scope for interrogatories. To take for an example, in the first series of interrogatories it is asked whether a specified telephone number was the telephone number of a specified person, namely Maureen Devine, and in the second part it is asked is it not the case that Maureen Devine was the mother of Caroline Devine. These are clearly proper interrogatories. However, interrogatories 1.3 and 1.4 go on to enquire whether, if the telephone number was not the number of Maureen Devine, then whose telephone number was it, and if she was not the mother of Caroline Devine, then what was her relationship with various interested parties. In my view these are queries which, if the defendant is incorrect in its suppositions in the first two queries, are really purely fishing queries. The information which the defendant wants to elicit is that this was Maureen Devine’s telephone number and that she was the mother of Caroline Devine, but the case made on behalf of the defendant is that it might be very difficult or costly to prove this. However, the generalised nature of the third and fourth queries go far beyond savings of cost or doing justice between the parties, and in my view are inadmissible.

15. I will therefore allow the following interrogatories, where relevant amended as I have indicated:-