Jonathan Ross worries over a threat to interrogatories.

Jonathan Ross is a consultant at Denton Hall.

Pursuant to Order 26 Rule 1 of the Rules of the Supreme Court, a party may serve interrogatories relating to any matter provided they are necessary either for disposing fairly of the cause or matter or for saving costs.

Prior to 1990, interrogatories could only be administered with leave of the court, but the 1988 Civil Justice Review recommended a party should have an automatic right to administer interrogatories.

Many practitioners saw interrogatories as a way to secure early concessions from the other party. In particular, they could be used to destroy sham defences or pleaded denials which had no substance. They could also help pave the way to early settlements or successful summary judgment applications.

In his Access to Justice report, Lord Woolf recognised the failure of pleadings to satisfactorily clarify the issues. And his recommendation that all pleadings should conclude with a declaration of belief in the accuracy and truth of matters put forward recognises the importance of interrogatories when handling pleadings where there is no such declaration as occurs at present.

It is unfortunate, therefore, that after the decision in Det Danske Hedeselskabet v KDM International (28/5/93), the Court of Appeal has now held in Hall v Selvaco and Compton v Selvaco (21/3/96) that the use of interrogatories is to be limited and should not be used (except in extreme circumstances) to obtain information or admissions which are, or are likely to be, contained in pleadings, medical reports, discoverable documents or witness statements.

What the courts fail to recognise is that a defendant who has no real defence will seek to delay matters as much as possible and discovery may not be completed or witness statements exchanged until shortly before the trial. In my experience, if interrogatories are drafted clearly and limited to a small number of factual points, they can be answered cheaply and quickly and can be used to fulfil one of the main objectives of the Civil Justice Review – to save costs.

Order 26 Rule 1 was introduced to encourage the use of interrogatories but, after this decision of the Court of Appeal, it is clear many practitioners will steer clear of them because they are likely to be resisted, and few, if any, Masters will allow interrogatories to proceed at an early stage of the action in the light of the recent judgments.

This is a development which will only lead to further costs being incurred, not saved.