The High Court recently refused an application by an insurer for leave to deliver interrogatories in a coverage dispute, finding that the alleged material non-disclosure must be proved by oral evidence at trial.

In McCabe v Irish Life Assurance plc the defendant sought leave to deliver interrogatories in a case involving a challenge to Irish Life's avoidance of a life assurance policy for material non-disclosure of prior medical history by the deceased. The plaintiffs were the beneficiary under the policy (the deceased's husband) and the legal personal representative of the deceased, and sought declarations that they were entitled to performance of the contract of insurance.

The defendant had obtained extensive discovery of the deceased's medical records, which enabled the defendant to phrase the interrogatories with some precision. Interrogatories are questions relating to facts in issue. Replies to interrogatories are provided by way of yes or no responses on affidavit and the responses may be used as evidence at trial. The defendant argued that if leave to deliver the interrogatories were granted, it would substantially narrow the issues which had to be determined at the trial of the action and lead to a significant reduction of the costs of the trial itself. The plaintiffs submitted that the issues were too complex for yes or no answers and oral evidence should be adduced from the various doctors whose existence was disclosed in the discovery.

The court concluded that it would be unfair to order the plaintiff to furnish answers on affidavit to the questions raised in the interrogatories and accepted the plaintiff's submission that the questions relating to the deceased's medical conditions and treatments during her lifetime did not lend themselves to simple yes or no answers. The court concluded that to force the plaintiffs to furnish such answers would be an injustice and the whole story would not be told.

The court noted that the issue of the deceased's prior medical records and her treatment would be crucial issues at trial. In the circumstances, it was not unreasonable that the defendant – which was resisting payment under the life assurance policy on the grounds of material non-disclosure on the part of the deceased – should prove this fact by oral evidence at trial. Further, the court concluded that justice required that the plaintiffs be given the opportunity to test the evidence by means of cross-examination of the defendant's witnesses.

For further information on this topic please contact April McClements at Matheson by telephone (+353 1 232 2000) or email (april.mcclements@matheson.com). The Matheson website can be accessed at www.matheson.com.

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