INTERROGATORIES
Azhani Arshad
Interrogatories is also known as ‘discovery of facts’. They are questions
served by one party, with leave of the court, to the other who has to answer
under oath (usually by an affidavit) and the questions may relate to any matter
which supports the interrogator’s case or to impeach or destroy his opponent’s
case.
MEANING
Order 24 provides for discovery, inspection and production of documents.
Order 26 provides for discovery of facts by means of questions
THE DIFFERENCE BETWEEN O.24 (DISCOVERY)
AND O.26 (INTERROGATORIES)
For disposing fairly of the cause or matter, or for saving costs (rule 1(3)).
In considering whether the interrogatories should be allowed or not, the court
must consider whether they were designed to obtain admissions of facts which
will reduce the issues, shorten the length of the trial and thus save costs
ROLE/OBJECTIVE
Before close of pleadings:
Without leave of the court, deliver interrogatories relating to any matter in
question.
Is a matter of right.
Where a party is served with interrogatories without leave of the Court, the
opposing party may either answer the interrogatories or refuse to answer the
same.
If he refuses, the applicant party must apply to the court for an order to compel
the opposing party to answer the interrogatories. There is nothing in Order 26,
rule 2 which compels a party to answer interrogatories merely because it was
served before the close of pleadings.
APPLICATION
After close of pleadings:
by notice of application in Form 44 supported by an affidavit
The proposed interrogatories in Form 45 + application must be served on the
opponent
Order must be in Form 46
Interrogatories must be answered in Form 47 within the specified time
In World Renown Industries Sdn Bhd v JM Land Sdn Bhd [2012] MLJU 1157,
the High Court held that where an application for interrogatories is made after the
close of pleadings, a satisfactory explanation for the delay is a prerequisite.
CONT…
In LKS (M) Sdn Bhd v Global Green Engineering & Supply Sdn Bhd &
Ors [2017] MLJU 2085, the Court accepted that the Defendants had proffered
satisfactory reasons for a delay of 27 days on the basis that:
(i) that there were various on-going applications/pleadings that needed to be
attended to by the Defendants; and
(ii) the Plaintiff’s Statement of Claim and its exhibits were voluminous, containing
allegations that were new and/or unknown to the Defendants. The case had also
not been set down for pre-trial case management at the time of filing.
CONT…
The procedure to be followed in the case of insufficient answers depends on whether
the interrogatories have been ordered by the court or administered without order.
Where ordered interrogatories have been served on a party and he answers ‘any of them
insufficiently’, the court may make an order under rule 6(1) requiring that party ‘to
make a further answer, either by affidavit or on oral examination’.
In OKRST Arumugam v KRSSP Suppiah Chettiar [1935] MLJ 4 (CA, Sing), the court
ordered further interrogatories as the interrogatories were not answered satisfactorily.
If interrogatories are served without order and the party who is served answers any of
them insufficiently, the party serving may ask for further and better particulars of the
answer given. If further and better particulars are not forthcoming, the party making the
request may apply to court for the appropriate order.
PROCEDURE
Where the party being interrogated is a body of persons, corporate or
unincorporated, the answer is to be given by such individual member or
officer who is sufficiently acquainted with the facts and is thus most able to
provide a satisfactory response. Where appropriate, more than one person may
be named to respond.
CONT…
The granting of leave to administer interrogatories is at the discretion of the
court.
All applications for interrogatories concern the exercise of judicial discretion
which depends on the particular facts of each case.
The court will consider 2 factors, namely, Relevance; and Necessity
judgments on interrogatories applications are purely illustrative and have no
binding effect from the perspective of the stare decisis doctrine’
COURT’S APPROACH IN GRANTING
THE APPLICATION
Q must relate to the matter in issue between the parties
It can be extended to prove the applicant’s own case and attack his opponent’s
case
It can also be used to seek admission
Not fishing interrogatories
Not solely to the credibility or character of a witness
RELEVANCE
Q must be necessary either to dispose fairly of a cause or matter or to save
costs.
It will not be allowed;
If a notice to admit facts under Order 27 rule 2 can be used;
Party offers to provide the information sought
If a witness must be called at the trial to prove a fact.
NECESSITY
In Ramsey v Ramsey [1956] 1 All ER 165, the court held that the discretion of
court varies from case to case and the court will consider the following;
Is the Q relevant?
Would it help the applicant or he has to call a witness to establish the fact?
Is the Q clear and precise so the opponent can give a straight answer
Is it reasonable by way of interrogatories?
CONT…
The main consideration is that the interrogatories must be confined to matters in issue
save in some circumstances, where it may extend to facts the existence or non-
existence of which is relevant to the existence or non-existence of facts directly in
issue: Sheikh Abdullah bin Sheikh Mohammed v Kang Kok Seng [1975] 1 MLJ
89 (FC) at 90.
The mere fact that the party has knowledge does not mean that interrogatories cannot
be delivered, because the object of interrogatories is to enable a party to obtain
admissions from the other party so as to relieve himself from the necessity of adducing
evidence.
As regards the questions the answers to which may incriminate the party concerned, the
rule is to allow all such questions as are material to be put and let any objection to
answer them be taken on oath by the interrogated party at the stage of answering them.
CONT…
• Aarti a/p Telak Chan v Previnder Singh a/l Pretam Singh [2018] MLJU 6,
• a) Interrogatories consist of a series of written questions posed to the opponent about the case concerning
discovery of facts, which is to enable a party to obtain from the opposite party admissions or evidence of
material facts to be added at the trial or to appraise the strength or weakness of the case before the trail and
thereby to assist in the fair disposal of the proceedings at or before the trail or is saving costs. The answers
to interrogatories might also reduce the need for and scope of discovery;
• (b) Interrogatories that do not relate to a matter in question or otherwise known as ‘fishing interrogatories’
are not allowed.
PRINCIPLES RELATING TO
INTERROGATORIES
• (c) Interrogatories can be served before the pleadings are closed without leave of the court.
• (d) However once pleadings are closed, the leave of the court is necessary for serving interrogatories.
• (e) If the answer to the interrogatories is insufficient, the court may make an order requiring a party to
make necessary further answer either by affidavit or on an oral examination as the court may direct.
CONT…
Plaintiff action should be dismissed.(If P default)
The defendant’s defence should be struck out, and judgment be entered for the
plaintiff if defendant fail to comply with an order for interrogatories. As in all
cases where pleadings are struck out, the power is sparingly exercised and
only where the answer is insufficient as to show want of bona fides.
the court may make an order for committal:
Party or the solicitor.
FAILURE TO COMPLY
Party who has been served with the interrogatories can object on the following
grounds:
Not relevant;
Not necessary;
‘fishing’;
Evidence, not facts;
Opinion, not facts;
Oppressive and scandalous;
Premature; and
Privilege.
OBJECTIONS
A party may refuse to answer any interrogatory on grounds of privilege.
The same considerations are applicable as in the case of discovery of
documents: O 24.
For instance, the interrogatory may require information which concerns
communications between the party and his advocate and solicitor, marital
communications, or material which may incriminate the party. The claim of
privilege is effectual to protect a party from being required to give further
answers to interrogatories.
PRIVILEGE
The interrogated party must take each question by itself and if he objects to
answer any question, he must say why.
If an objection is a mere matter of argument, and not a statement of new facts,
and the judge sees that the answer is sufficient, he is quite right in refusing to
require a person to state his objection.
CONT…
The rule underscores the function of interrogatories which is to provide
evidence to be used at trial. The use of such evidence is always selective and
the emphasis or credibility to be placed on it is in the discretion of the party
putting it forward.
The court may consider any answers or parts of answers that have not been
put into evidence, and the totality of the answers in determining the context of
the answers or parts of answers that have been put in evidence.
The court may direct that other answers or part of answers, which have not
been put in evidence, be put in. Once adduced, the interrogatories become
evidence in the case and may be supported or contradicted by other evidence.
USE OF ANSWER TO INTERROGATORIES AT
TRIAL (RULE 8)
An Order made under this Order is not absolute. It may be varied or revoked
by the Court in subsequent interlocutory proceeding or at the trial of the
action.
O. 26 RULE 9
