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Money Markets International Stock Brokers Ltd. v. Fanning [2000] IEHC 15; [2000] 3 IR 215 [2001] 1 ILRM 1 (11th February, 2000)
1THE
HIGH COURT
1999
No. 10527 P
BETWEEN
MONEY
MARKETS INTERNATIONAL STOCK BROKERS LIMITED (IN LIQUIDATION)
PLAINTIFF
AND
OISIN
FANNING, JOHN CURRAN, PAUL BOUCHER, COLM O’REILLY, TIM MURPHY, CIAN KEALY
AND PETER O’BYRNE
DEFENDANTS
JUDGMENT
of O’Sullivan J. delivered on the 11th day of February, 2000.
INTRODUCTION
1. The
Plaintiff seeks to compel the first and fourth named Defendants to reply to
interrogatories delivered by it as of right in the circumstance where it
alleges fraud against all the Defendants and, secondly, to deliver further
interrogatories against all the Defendants.
2. As
interrogatories must relate to matters in question it is necessary, at the
outset, to identify the issues arising on the pleadings.
THE
PLEADINGS
3. The
Plaintiff’s case is brought by the Official Liquidator pursuant to leave
granted by the Court. At all material times the Plaintiff (“MMI”)
carried on the business of stockbroker and the Defendants were executive
directors thereof. The Plaintiff claims that the Defendants defrauded MMI out
of large sums of money by transferring same out of the client bank accounts of
MMI, re-lodging these sums giving credit to parties not entitled thereto and
wrongly debiting a further party (Cater Allen) and recording false transactions
in the books of MMI. The wrongful beneficiaries of such transactions were the
directors or persons connected with them. In a further allegation it is said
that a sum of £200,000 Sterling was transferred telegraphically from an
MMI client bank account to a Hambros private bank account for the benefit of an
unauthorised party and that the same third party, “Cater Allen” was
wrongly debited with the said amount. The third major allegation is that
almost £500,000 Sterling was wrongly transferred from the MMI account with
Bank of Ireland, Kilburn, London for the benefit of the third Defendant.
4. It
is alleged, further, that the books of MMI were falsely manipulated to disguise
and cover up the foregoing transactions.
5. A
large number of interrogatories have been delivered by the Plaintiff relating,
in the main, to the detailed, step by step, tracing of the
“paper trail”
which is apparent from a perusal of the books of the company now available to
the Liquidator. For example the first Defendant is asked a number of detailed
questions in relation to each of the relevant cheques including whether it was
drawn on the relevant account, whether it was made payable to MMI, whether the
cheque stub recorded the payee as Cater Allen, whether it was signed by the
seventh Defendant, whether it was lodged back into a specified account on a
specified date, and whether the Cater Allen client ledger account recorded the
payment to that party.
6. The
foregoing is a sample only; it is fair to say, however, that the vast bulk of
interrogatories relate to particularised detail of the kind indicated in the
foregoing sample.
7. The
defences of all seven Defendants comprise comprehensive denials. In addition
the second, third and seventh Defendants say they relied upon the first
Defendant’s representations that he had authority to transfer the monies
and to arrange the various transactions. These Defendants say that if the
others were guilty of fraud or breach of fiduciary duty or trust or statutory
duty, they are not liable for the actions of the others. The fifth and sixth
Defendants do not go quite so far, but they do say that insofar as they drew
cheques, they did so in the belief that same was for honest and
bona
fide
purposes and they were not aware of the manner in which these transactions were
in fact treated or recorded in the books of MMI.
8. As
will be seen, the pleadings establish deep and comprehensive issues between the
Plaintiff and all the Defendants but also as between several of the Defendants
inter
se.
SUBMISSIONS
9. Mr.
Gleeson B.L. on behalf of the Plaintiff submits that:-
1.
The
Defendants as ex directors of the Plaintiff owe a particular duty to it and
should be compelled to answer interrogatories relating to the primary books of
the company which were prepared and maintained under their control and pursuant
to their statutory duty.
2.
They
may not avoid this obligation on the plea that they were not personally
involved in the specific transactions in question because, as directors, they
have an obligation to get such information as they can from other servants of
the company who may have personally conducted the relevant transactions. He
relies in this connection on the observations of Walsh J. in
J. and L.S. Goodbody Limited -v- The Clyde Shipping Company Limited
(Supreme Court unreported, 9th May, 1967, p.5 following) to the effect that:-
“Prima
facie the secretary is the person to whom they (the
interrogatories)
should be delivered and in the absence of any Order to the contrary it is to be
assumed that that was what was intended in the present case. It is important
to bear in mind, however, that it is not the secretary who is being
interrogated but the company. The secretary is not answering for himself but
for the company and in doing so he must get such information as he can from the
other servants of the company who have personally conducted the transaction in
question and have personal knowledge of the facts sought. The
secretary’s function is to give the answer of the company. When the
secretary answers on the basis of information obtained from other servants of
the company he is answering according to information. On behalf of the company
he is
bound
to answer according to information and belief acquired or formed from personal
knowledge or from information obtained from others who are servants or agents
of the company and have acquired the information in that capacity.”
10. This
view was echoed by Laffoy J. in
McCole
-v- The Blood Transfusion Service Board and Others
(unreported: 11th June, 1996 at p.12) although she was not referred to
Clyde
Shipping
,
where she said
:-
“The
duty of the first named Defendant is to make reasonable enquiries of present
and past employees and agents. Having done so, it can qualify its answer in
such a way as to obviate any adverse comment during cross examination at the
trial”.
11. The
interrogatories could not be described as
“fishing interrogatories”,
in the circumstances that the details have been precisely pleaded, the
Plaintiff knows precisely where it is going and what facts it will rely on,
and seeks admissions of facts so identified (as distinct from evidence, or
certainly evidence of how the Defendants intend to conduct their defences).
3.
Under
the rules where a Plaintiff pleads fraud it is entitled without leave of the
Court to deliver interrogatories and there is nothing in the authorities (which
do not explicitly deal with such a case) to suggest that the Defendants may
refuse to answer in the absence of establishing prejudice: in the present case
there are no affidavits in response to the grounding affidavit of the Liquidator.
4.
Having
regard to the test set down by the Supreme Court in
Bula
Limited -v- Tara Mines Limited
[1995:1:ILRM:401 following; per Lynch J. at page 405] he submits that costs
will be saved and injustice avoided if these interrogatories are answered in
that the Plaintiff will not have to call the Defendants to prove these
transactions thereby depriving itself of the opportunity to cross-examine them.
12. In
addition to the foregoing, considerable discussion arose concerning the
distinction between interrogatories which relate to the facts in dispute on the
one hand, and on the other, interrogatories which relate to evidence of the
facts in dispute where the authorities allow the former but not the latter: a
difficult distinction explicitly acknowledged as such by Costello J. (as he
then was) in
Mercantile
Credit Company of Ireland -v- Heelan
[1994:2:IR:105 at p.112].
13. Mr.
Sanfey B.L. submitted on behalf of the first Defendant:-
1.
Whilst
the rules entitle a Plaintiff alleging fraud to deliver interrogatories without
leave of the Court, there is nothing in the rules to suggest that a different
test applies as to whether or not they are permissible. There is no
presumption in favour of interrogatories in a fraud case. Order 31 Rule 6
entitles his client in this case, as in any other, to object to answering on
the grounds therein set out.
2.
His
clients, as all the Defendants, have sworn in their answers, that they have had
no personal involvement in or knowledge of the specific transactions concerned.
The
dicta
of Walsh and Laffoy JJ. in
Clyde
Shipping
and
McCole
respectively do not apply in the present case because in those cases the
companies were being interrogated and the companies were defendants. It was
therefore appropriate that the secretary or a director in delivering a reply of
the company would make enquiries. In the present case the Defendants are being
sued as individuals and therefore have no more obligation than any other
individual
accused of fraud
.
3.
It
is apparent that the Liquidator can prove the various matters in question by
contact with the appropriate witness. In his affidavit grounding an
application for a Mareva Injunction, references are made to contact with Cater
Allen and, indeed, to the latter’s Irish Solicitors. There was in
addition a financial controller and compliance officer in the Plaintiff company
who is not a Defendant and who could give the evidence. There is no question,
therefore, of the Liquidator
“...
not having (the) knowledge (n)or the ability to prove the facts
either
at all or without undue difficulty”
,
to
use the test established by Lynch J. in the
Bula
case
(page 405).
4.
The
Liquidator has not established a necessity or special exigency which would
justify compelling the Defendants to answer the interrogatories. The necessity
test is apparent from the cases, for example, per Costello J. (as he then was)
in the
Mercantile
Credit Company
case (page 110) where he says:-
“
Leave to deliver interrogatories will only be given where they are necessary
for ‘disposing fairly’ of the cause or matter, or for saving
costs.
In considering the fair disposal of an action commenced by Plenary Summons the
Court must bear in mind that such actions are in principle to be heard on oral
evidence (O.1., r.2) and that the use of evidence on affidavit given in reply
to interrogatories is an exception which must be justified by some special
exigency in the case, which, in the interest of doing justice, requires the
exception to be allowed”.
5.
It
would be unfair to deprive the first Defendant of an opportunity to
cross-examine the other Defendants which might arise if the first Defendant is
required to answer these interrogatories thus relieving the Plaintiff of the
necessity of calling one or other of his co-Defendants.
6.
It
is an abuse by the plaintiff of the procedures of the Court, in the
circumstances, to seek to compel answers and thereby avoid the usual onus of
proof.
7.
In
regard to the new interrogatories (which query whether authorisation was sought
or given from or by Cater Allen and whether the relevant sums were paid to
Cater Allen), these are clearly seeking evidence, as distinct from facts, and
are accordingly not compellable.
8.
The
Plaintiff relies on the wrong test: in the
Bula
case, the true test per Lynch J. was not that interrogatories would be
permitted where it was more convenient for the party interrogating but rather
they would be permitted only where such party did not have the knowledge or the
ability to prove the facts either at all or without undue difficulty. In the
present case it is clear that these facts could be proven without undue
difficulty by the Plaintiff or, at least, there is no evidence to the contrary.
14. Mr.
Marray B.L. for the fourth Defendant adopted Mr. Sanfey’s submissions and
further submitted:-
1.
If
the facts (or
“evidence”)
sought to be established by way of interrogatories go the core of the case made
by the Plaintiff against the Defendant then this constitutes evidence which
should not be established on affidavit. In the present case the Plaintiff is
saying that the very entries in the books itself constituted the fraud or part
thereof and accordingly interrogatories dealing with these transactions are
either futile (since they are self-evident) or so central to the allegation of
fraud that they should be disallowed.
2.
The
interrogatories are indiscriminate in that they or a large number of them are
common to all Defendants and should be dismissed as onerous.
3.
In
relation to the new interrogatories, leave should be refused as these amount to
the Plaintiff seeking to establish evidence of fraud on affidavit.
4.
If
these interrogatories are allowed, there will be little or no need for a trial
on oral evidence, and this would be clearly wrong.
15. Mr.
Ó hOisin B.L., for the second, third and seventh Defendants who were
concerned only with the new interrogatories submitted that:-
1.
These
interrogatories seeking information relate to evidence which is clearly and
preferably available through a third party, namely, Cater Allen. No case is
made that this evidence would not be available to the Plaintiff.
2.
Furthermore,
these interrogatories are fishing for evidence of the Defendants'
defence,
and should therefore be disallowed.
16. Mr.
McCullough B.L. for the fifth and sixth named Defendants (who were also
concerned only with the additional interrogatories) submitted as follows:-
1.
The
issue of Cater Allen’s authorisation is central to the allegation of
fraud,
and
should therefore be dealt with only by way of oval evidence.
2.
The
Plaintiff has failed to show a special exigency or necessity that these
interrogatories must be answered. For this he relied on
Woodfab
Limited -v- Coillte Teroanta and Another
(unreported: Shanley J.: 19th December, 1997) (at p. 13) and also
Mercantile
Credit Company Limited -v- Heelan
(1994:2:IR:105) per Costello J. (at p. 110).
3.
Interrogatories
should not be directed where the evidence is available to the Plaintiff from
other sources. For this he relied on
Bula
Ltd (In Receivership) and Others -v- Tara Mines Limited and Others
[1995:1:ILRM:401 per Lynch J. at page 405].
4.
These
interrogatories seek to procure evidence of his clients’ conduct which is
central to the allegation of fraud and therefore touches on the evidence which
the Defendant would produce and is not therefore allowable on the authorities.
5.
The
overriding principle is that interrogatories should not be directed where it
would be unfair to the party interrogated. Here a Court Order would tend to
relieve the Plaintiff of the requirement of calling other Defendants, including
the seventh Defendant: indeed the Liquidator has sworn that in the absence of
interrogatories he may have to call such Defendant. The Order would to that
extent facilitate a situation whereby the fifth and sixth Defendants could be
deprived of their opportunity to cross-examine such other Defendant. That
would be unfair, particularly where it is clear that the evidence is, in
principle, available to the Plaintiff from other witnesses.
6.
The
Liquidator is not suing as Liquidator of the Plaintiff company but rather as
trustee on behalf of Cater Allen who have not as yet made a claim for loss
against the Plaintiff company: the Liquidator should not be exempted from the
ordinary obligation to establish his case through his own witnesses.
17. Miss
Hyland B.L., in reply on behalf of the Plaintiff submitted:-
1.
In
a fraud case which may involve a degree of moral turpitude, it is in the public
interest that no restriction be placed on the Court’s capacity to
ascertain the facts so as to ensure that a wrongdoer does not escape the
consequences of his actions. For this proposition she relied on the
observations of Costello J. (as he then was) in
Murphy
-v- Kirwan
[1994:1:ILRM:293] as cited per Finlay C.J. (page 297): this is an additional
factor which should be taken into account on the present application.
2.
Nash
-v- Layton
[1911:2 CH:71] establishes the principle that interrogatories are permissible
in relation to facts in dispute and are excluded only where they relate to
evidence of collateral facts. Although the judges in that case differed as to
its application, the principle was clear. The difficulty of applying the
distinction between facts and evidence of facts was acknowledged by Costello J.
(as he then was) in
Mercantile
Credit Company of Ireland Limited.
In the present case the interrogatories are allowable as they relate to facts
in dispute or facts which the Plaintiff asserts and which are in issue as
distinct from evidence which does not form part of those facts.
3.
A
special exigency is established in the affidavit of the Liquidator
who
says that if the Defendants are not compelled to answer the outstanding
interrogatories the Plaintiff
“may
be compelled to subpoena the motioned Defendants in order to elicit the
admissions and/or information presently sought from them by virtue of the
interrogatories. However, if the Plaintiff is forced to subpoena the
Defendants, it will not be permitted to cross-examine them on the evidence
tendered by them. This will put the Plaintiff in a disadvantageous position
and may prevent the matter
from
being disposed of fairly
.”
He further claims that he would be prejudiced in that neither himself nor his
servants or agents are in a position to prove any of the documents given that
they came into being before he was appointed Official Liquidator. Miss Hyland
also submitted that in the absence of interrogatories she may be compelled to
examine or cross-examine all seven Defendants whereby costs would be increased
which could be saved if the interrogatories were directed.
4.
In
the context of the test in
Bula
Ltd
(per Lynch J.) which is:
“As
I understand the law the basic purpose of interrogatories is to
avoid
injustice where only one party has knowledge and the ability
conveniently
to prove facts which are important to be established in aid of the opposing
party’s case, such opposing party not having such knowledge nor the
ability to prove the facts either at all or without undue difficulty”
,
she
asserted that the evidence on behalf of the Plaintiff states that the Plaintiff
“...may
be compelled to subpoena the motioned Defendants...”
if
the interrogatories are not directed and refers to the fact that the exhibits
to the affidavit indicate that Cater Allen is a company domiciled outside the
jurisdiction, albeit that correspondence exhibited to the liquidator’s
affidavit grounding an earlier application for a Mareva Injunction indicates
that this party has instructed Solicitors within the jurisdiction.
5.
She
submitted, finally, that the Defendants cannot expect the Plaintiff necessarily
to call any one of the Defendants so that their complaint that they could be
deprived of an opportunity to cross-examine such Defendants is not firmly
grounded.
18. Because
I permitted Miss Hyland to refer to two new cases, I offered a further
opportunity to Counsel for the Defendants to comment on these cases.
19. Mr
Sanfy B.L. pointed out that the “public interest” principle in the
context of fraud cases, (being an
obiter
dictum
of Costello J (as he then was) albeit approved by Finlay C.J. in
Murphy
v Kirwan,
)
was not referred to by him in
Mercantile
Credit Company Limited
which had to do with this issue directly. Indeed this case shows that no
special rules apply when interrogatories in a fraud case are contested. Mr
Marray B.L. emphasised that if wide-ranging interrogatories are permitted there
would be no need for a trial at all, whilst Mr McCullogh B.L submitted that the
effect of directing interrogatories in a fraud case would be to exclude
evidence by confining it.
20. In
addition, I offered the Defendants' representatives an opportunity to comment
on the observations of Walsh J in
J
& L S Goodbody Limited v the Clyde Shipping Company Limited
(Supreme Court: unreported: 9th May 1967) (at p. 3) which appeared, to some
extent, to qualify the requirement in the rules that interrogatories shall be
given only where they are considered necessary, the relevant passage being as
follows:-
“While
Order 31 Rule (2) of the Rules of the Superior Courts provide that leave to
deliver interrogatories shall be given only when it is considered necessary
either for disposing fairly of the cause or matter or for saving costs, it is
well established that one of the purposes of interrogatories is to sustain the
Plaintiffs’ case as well as to destroy the Defendants’ case (see
the judgment of this Court in
Keating
v Healy
)
and that interrogatories need not be confined to facts directly in issue but
may extend to any facts, the existence or non-existence of which is relevant to
the existence or non-existence of the facts directly in issue. Furthermore,
the interrogatories sought need not be shown to be conclusive on the question
in issue but it is sufficient if the interrogatories sought should have some
bearing on the question and that the interrogatory might form a step in
establishing the liability. It is not necessary for the person seeking leave
to deliver the interrogatory to show that it is in respect of something he does
not already know. ....
I
would also like to express my agreement with the view expressed by the learned
High Court judge that interrogatories ought to be used more than they are.
This procedure and all other pre-trial procedures which are available should be
encouraged because anything which tends to narrow the issues which have to be
tried by the Court and which will reduce the area of proof must result in
considerable saving of time and money which cannot but be beneficial to the
parties and to the administration of justice in general."
21. In
response it was submitted for the Defendants that Costello J. (as he then was)
and Shanley J. in
Mercantile
Credit Company Limited
and
Woodfab Limited
respectively
reasserted the requirement that a special exigency must be shown by the party
seeking the interrogatories.
ISSUES
22. Four
principal issues appear to me to emerge from these submissions as follows:-
1. Can
the Defendants in this case be compelled to make enquiries for the
purpose
of answering interrogatories where they have deposed to lack
of
personal knowledge?;
2. Is
there a need for the Plaintiff to establish a special exigency or
necessity
where fraud is alleged and, if so, has the liquidator
established
such an exigency?;
3. Would
it be unjust, in principle, to require the Defendant to reply?; and
4. What
is the correct test for determining the subject-matter of
interrogatories
and have the present interrogatories or any of
them
satisfied this test?
1.
CAN THE DEFENDANTS BE COMPELLED TO MAKE ENQUIRIES?
In
the
Clyde
Shipping Company
case
Walsh J (Ó Dálaigh C.J. concurring) said (page 6):-
“The
secretary is not answering for himself but for the company and in doing
so
he must get such information as he can from the other servants of the
company
who have personally conducted the transaction in question and
have
personal knowledge of the facts sought. The secretary's function is to
give
the answer of the company. When the secretary answers on the basis of
information
obtained from other servants of the company he is answering
according
to information. On behalf of the company he is bound to answer
according
to information and belief acquired or formed from personal
knowledge
or from information obtained from others who are servants or
agents
of the company and have acquired the information in that capacity.”
23. The
Defendants distinguished the present case from
Clyde
Shipping
by
saying that the Defendant in that case was a company whereas in the present
case they are individuals and are not giving the answer of the company but only
their own answers. They should not, therefore, be compelled to give answers
which are not within their personal knowledge.
Further
on in
Clyde
Shipping
,
however, Walsh J continued:-
“In
Douglas
v Morning Post Limited
(39:Times Law Reports: 402) the Plaintiff, in reply to an interrogatory
administered by the Defendants in a libel action (“are not all or some
and which of the statements of fact contained in such extracts untrue?”),
said that:-
“In
my firm belief none of the statements of fact contained in the said extract is
untrue.” The defence in the case was one of justification. It was held
in the Court of Appeal in England that this answer was not sufficient. Lord
Justice Bankes expressed the view that if a deponent affirmed only as to one of
the three elements required without affirming as to all three (knowledge,
information and belief) he could not complain that his answer was regarded with
suspicion as departing from the ordinary form. “If there was no
knowledge or information and only belief” he thought that “the
person answering was in great peril.” Lord Justice Scrutton said that
“if a party had means of knowledge he must use them to the best of his
knowledge, information and belief”. In his view it was sufficient to say
in reply to an interrogatory “yes” or “no” but if the
person departed from this and put in one of the above elements of knowledge,
information and belief, he ought to put in all. Merely to affirm that a party
had belief was not sufficient.
In
my view any party making answer to an interrogatory, whether he be an
individual
or a body corporate speaking through one of its officers, must not
answer
in such a way as to leave the other party in doubt as to whether or not
the
party interrogated has availed himself of the information properly at his
disposal.”
24. I
would make two observations with regard to the foregoing citation:
(a)
It
was the Plaintiff (an individual) in the
Morning
Post Limited
case of whom Lord Justice Scrutton said
“if a party has had the means of knowledge he must use them to the best
of his knowledge information and belief”
:
and
(b)
Walsh
J makes no distinction between an individual and a body corporate (speaking
through one of its officers) in this context where he condemns both if
answering in such a way as to leave the other party in doubt as to whether or
not such individual or body has availed himself of the information properly at
his disposal.
25. So
far as this authority goes, it seems to me, that if information can be said to
be properly at the disposal of the Defendants then, notwithstanding that they
are being interrogated as individuals rather than as officers of a company,
they may not avoid giving answers to interrogatories merely on the grounds that
the subject matter thereof is not within their personal knowledge.
26. But
can this knowledge be said to be
"properly
at the disposal"
of the Defendants?
27. In
dealing with a submission in
McCole,
to the effect that it is inappropriate to seek interrogatories about matters
which are within the knowledge of a third party, Laffoy J referred to a passage
from Colman J. in
Det
Danske v KDM
(1994:2:Lloyd’s Reports 534) which included the following
“The
position as contemplated by
Welsbach
Incandescent Gas Lighting Company
(1900:2:Ch.:1) is that the person other than the party interrogated whose
knowledge
may, for the purpose of interrogatories, be treated as the knowledge of the
party interrogated must be a person for whose knowledge that party is
responsible, i.e. must be a person who holds that relationship to the party
interrogated which would give rise to responsibility on the part of the
interrogated party for the acts and knowledge and state of mind of the third
party.”
28. The
Defendants are sued as erstwhile directors of the Plaintiff. In that capacity
they had responsibility for ensuring that the books of the company were
correctly prepared and maintained. Many of the interrogatories exhibited seek
six specific answers which are,
prima
facie
,
apparent from the face of the books and other documents of the company.
Furnishing answers to these would present,
prima
facie
,
no great burden. Insofar as the Defendants may be concerned as to whether the
information so appearing is or is not accurate then it seems to me that at the
relevant time (that is when they were directors of the Plaintiff) they were in
a relationship to the individual who did have the relevant personal knowledge
as to make them responsible for the acts and knowledge of such individual.
29. In
my view it is artificial for the Defendants now to say that they have no
personal knowledge of the information of these documents in respect of which
(at the time they were brought into existence) they were, as directors, in a
position of responsibility. That being the case I consider that the Defendants
have available to them information
“properly
at (their) disposal”
,
to use the phrase employed by Walsh J (page 7) in
Clyde
Shipping
and as such may not, on the sole ground of lack of personal knowledge, decline
to respond.
30. In
this context I note, further, that one of the conclusions of Costello J.
(as he then was) in
Mercantile
Credit Company of Ireland Limited
(page 115) was
“Interrogatories
which seek
admissions
as to the existence of documents and signatures to documents identified in
discovery will normally be allowed, unless there are special reasons why in the
interests of justice an Order should not be made.”
31. I
would conclude, therefore, that insofar as the interrogatories exhibited relate
to admissions sought as to the existence of documents and signatures to
documents which are identified and which came into existence at a time when the
Defendants were directors of the Plaintiff company answers cannot be declined
by the Defendants solely on the grounds of lack of personal knowledge.
2(a).
Must the Plaintiff in a fraud case establish a special exigency for
compelling replies to interrogatories and if so has the liquidator established
such an exigency in the present case?
32. It
is clear that the rules and the principal High Court authorities in this
country (
Mercantile
Credit Company of Ireland Limited
,
Bula
Limited (In Receivership),
McCole,
and
Woodfab
Limited
),
establish or acknowledge that such an exigency or necessity is a necessary
prerequisite in all cases where interrogatories are contested. In
Clyde
Shipping
,
however, Walsh J (Ó Dálaigh C.J. concurring) appeared, at least,
largely to subordinate this requirement to the principle that one of the
purposes of interrogatories is to sustain the Plaintiff’s case as well as
to destroy the Defendant’s case when he said:-
“While
Order 31 Rule (2) of the Rules of the Superior Courts provides that leave to
deliver interrogatories shall be given only when it is considered necessary
either for disposing fairly of the cause or matter or for saving costs, it is
well established that one of the purposes of interrogatories is to sustain the
Plaintiff’s case as well as to destroy the Defendant’s case (see
the judgment of this Court in
Keating
v. Healy
)
and that interrogatories need not be confined to facts directly in issue but
may extend to any facts, the existence or non-existence of which is relevant to
the existence or non-existence of the facts directly in issue.”
33. This
suggests that so far as the Supreme Court is concerned, once it is established
that the purpose of an interrogatory is either to sustain the Plaintiff’s
case or to destroy the Defendant’s case then it may be regarded as
necessary for fairly disposing of the cause or matter or for saving costs
within the relevant rule. In this context I note that Shanley J. in
Woodfab
Limited
in referring to a submission to the effect that
“necessity
was a stringent test,”
,
which relied on
Hall
v. Sevalco Limited
(Times Law Report: 27th March: 1996), concluded, as follows ( pp. 12/13):-
“As
I have indicated, the various decisions to which I have been referred have gone
to some length to emphasise that giving leave to deliver interrogatories must
be regarded as an exception in any case to be heard on oral evidence and must
be justified by the party seeking to deliver interrogatories. That
the
parties seeking leave to deliver interrogatories must establish that they are
necessary can be seen from Order 31 Rule 2 of the Rules of the Superior Courts.
However it does appear that once the party seeking to deliver interrogatories
satisfies the Court that such delivery would serve a clear litigious purpose
by saving costs or promoting the fair and efficient conduct of the action in
question, then the Court should be prepared to allow the delivery of the
interrogatories unless it is satisfied that the delivery and answering of the
interrogatories would work an injustice upon the party interrogated. What I
have just said, is, I believe, simply another way of restating what is said in
Order 31 Rule 2 of the Rules, namely that leave shall be given to serve
interrogatories where it is considered ‘necessary either for disposing
fairly of the cause or matter or for saving costs’.”
Clyde
Shipping
was not cited to Shanley J. but, notwithstanding, he arrived at a conclusion
which, as I have indicated, appears to be similar to that reached by the
Supreme Court in the earlier case.
34. I
would hold, therefore, that the necessity referred to in the rules can be
satisfied if the party exhibiting interrogatories can establish that answers to
them would save costs or promote the fair and efficient conduct of the action
in question. The directing of replies must, however, at all times be subject
to the overriding principle that compelling such replies would not work
injustice upon the party interrogated. I would add in this context that I have
read the short judgment of Ó Dálaigh C.J. in
Keating
v. Healy
and, so far as relevant, it supports, without significant addition, the
citation to which it is linked by Walsh J. in
Clyde
Shipping
.
(b)
Has the Plaintiff established a sufficient "exigency"?
35. At
paragraph fifteen of his grounding affidavit the liquidator says:-
“I
say that the use of interrogatories in this case will save costs and will
shorten the trial of the action for the reasons set out below.”
36. The
interrogatories in the main relate to documentation of which there is a
significant volume
and
“...
failure to reply to the interrogatories will result in a significant amount of
Court time being used for this (
probative)
purpose and a corresponding increase in cost.”
37. The
Liquidator had averred that neither he, his servants or agents are in position
to prove any of the documents and in the absence of replies to interrogatories,
it would be difficult for him to prove such documents “
...
by any other means apart from subpoenaing the motioned to Defendants”
which would prejudice him my precluding his cross-examining them.
38. Subject
to the question of injustice, I consider that the Plaintiff has discharged the
requirement of showing that it is necessary that these interrogatories be
answered both for disposing fairly of the cause or matter or for saving costs,
given that, as I interpret
the
relevant authorities, this requirement
includes
the purpose of promoting the fair and efficient conduct of the action in
question.
3.
Would it be unjust, in principle, to require the Defendants to reply?
39. The
Defendants say that it would be unjust because, given that the Liquidator has
sworn that he may have to
subpoena
the Defendants to prove the documents if interrogatories are not directed, the
making of a compelling Order would reduce, to that extent, the likelihood that
the Plaintiff would call those other Defendants (and in particular the seventh
Defendant) thereby, they say, depriving them of the chance (or reducing it) of
cross-examining that Defendant. This submission arises in the context that the
seventh Defendant, amongst others, has claimed that if he did any of the
actions complained of he did so on the assurance of, in particular, the first
Defendant that this was authorised and in order.
40. Furthermore,
say the Defendants, it is clear that these documents could be proved by other
means and other witnesses so that the Plaintiff would not be deprived of the
capacity to prove these facts and even if this were more cumbersome, expensive
and time-consuming, these considerations must give way to the overriding
principle that no injustice be done to the party compelled to reply.
41. On
the other side of this argument, it is submitted that the Liquidator on behalf
of the Plaintiff will be similarly disadvantaged if interrogatories are not
directed and, secondly, that no Defendant can have an expectation that the
Plaintiff will call any other Defendant, particularly where, in the case of the
seventh Defendant,
full
replies to interrogatories have already been delivered by him.
42. The
submission that an Order would impair one Defendant’s opportunity to
cross-examine another arises, in my view, from the fortuitous circumstance that
the Plaintiff has joined several Defendants in a single proceeding. Evidence
against one is not evidence against the other, there being no claim for
conspiracy. The joinder by the Plaintiff of several co-Defendants may confer
on each co-Defendant a potential advantage in terms of possible
cross-examination but one which does not arise from the intrinsic relationship
between the Plaintiff and each Defendant
per
se
.
No Defendant can expect to control the conduct of its case by either the
Plaintiff or any co-Defendant. None of the first six Defendants, for example,
could have prevented the seventh Defendant furnishing full replies to the
Plaintiff’s interrogatories. The disadvantage in relation to
cross-examination asserted, in this context, by the Defendants does not appear
to me, accordingly, to carry quite the same weight as the corresponding
disadvantage asserted by the Plaintiff.
43. In
this context I note that any admissions in relation to documents which are
sought in the bulk of the interrogatories, relate largely to matters of formal
and technical proof. No inference, adverse to the Defendants in the context of
an allegation of fraud, can arise from the merest formal averment
that
such-and-such a cheque was drawn on such-and-such an account, was made out to
such-and-such a party on such-and-such a date and was treated in a particular
way in the books of the company and so on. The nefarious purpose or intent
alleged to lie behind all this multiplicity of paperwork is in no way
established by, and in no way arises by inference from, the bulk of the
interrogatories delivered. The allegation that all of this was done to defraud
a third party or the creditors of the company is in no way established by the
bulk of the interrogatories directed to the specifics of the documents
themselves.
44. I
disagree with the submission that these matters should not be the subject of
interrogatories because they form the essence and core of the case against the
Defendants. In my view they do no such thing. Wherever else it lies the gist
of fraud does not reside in signing, dating or lodging cheques or transferring
or handling money or making entries in ledgers, all of which and analogous
activities
are the subject-matter of the bulk of the interrogatories in this case.
45. I
am not satisfied that directing the Defendants to reply to the bulk of the
interrogatories delivered would constitute injustice.
4.
What is the appropriate test and do the interrogatories or any of them satisfy
it?
46. Costello
J. (as he then was) acknowledged in
Mercantile
Credit Company of Ireland Limited
,
that the application of a distinction between interrogatories which relate to
facts in dispute (which are admissible) and those which relate to evidence of
facts in dispute (which are not) was a difficulty which was illustrated by
Nash
v. Layton
(1911: 2:
CH:
71). At issue in that case was whether the Plaintiff was a money lender who
was not registered under the Money Lenders Act, 1900 where he, the Plaintiff,
had brought proceedings to enforce a charge
given
by the Defendant to secure a loan made by him to the Defendant.
Interrogatories were exhibited as to what other loans the Plaintiff had made
before and apart from the loan in question and the terms of same. The trial
Judge held that these were not allowable and on appeal two (Cozens-Hardy M.R.
and Buckley L.J.) held that they were whereas the third (Fletcher Moulton L.J.)
held they were not
.
The
trial Judge and the minority appeal Judge took the view that these
interrogatories related to evidence of facts in dispute (the "fact" was whether
the Plaintiff was an unregistered money lender but this evidence relating to
other transactions was merely evidence relating to such a "fact") whilst the
majority in the Court of Appeal held that the interrogatories related to facts
which were in dispute and were therefore allowable.
Marriott
v. Chamberlain
(17: QBD: 154 (1886)) was referred to by all appeal Judges in
Nash
v. Layton
,
as indeed it was by Costello J. in
Mercantile
Credit Company Limited
.
Lord Esher M.R. said in
Marriott:-
“The
law with regard to interrogatories is now very sweeping. It is not permissible
to ask the names of persons merely as being the witnesses whom
the
other party is going to call, their names not forming any substantial part of
the material facts; and I think we may go so far as to say that it is not
permissible
to ask what is mere evidence of the facts in dispute, but forms no part of the
facts themselves. But with these exceptions it seems to me that pretty nearly
anything that is material may now be asked. The right to interrogate is not
confined to the facts directly in issue, but extends to any facts the existence
or non-existence of which is relevant to the existence or non-existence of the
facts directly in issue.”
47. The
distinction between “
...
what is mere evidence of the facts in dispute...”
on the one hand, and on the other “
...
the facts themselves...”
,
is a difficult one because the facts themselves become evidence once replies
are furnished to interrogatories. The line between what is and is not
permissible is even more difficult to lay down in light of the right to
interrogate not only in relation to the facts directly in issue but in relation
to any facts “
the
existence or non-existence of which is relevant to the existence or
non-existence of the facts directly in issue”
.
48. Clearly
one is not entitled to "fish". One is not entitled to ask one’s
opponents the name of his witnesses (unless these are part of the material
facts) nor the evidence or line of evidence which he intends to follow.
Equally, however, one may interrogate to obtain information about the issues
that arise in the action or to obtain admissions from the party interrogated
and these admissions may relate to facts in issue (for example details relating
to cheques in the present case) and in addition to facts surrounding or related
to such facts (providing these further facts relate to issues raised in the
pleadings). Interrogatories seeking information may not "fish" for the other
party’s evidence but may be permitted if they relate to issues raised in
the pleadings.
Marriott
v. Chamberlain
was cited in England in
Hooton
v. Dalby
(1907: KBD: 18) where Buckley L.J. said:-
“The
Plaintiff is entitled to interrogate the Defendant as to facts which tend to
support
the Plaintiff’s case, or to impeach the Defendant’s case, but not
as to
facts
which support the Defendant’s case.”
49. This
attractively neat formulation has not, in terms, been adopted in Irish law.
Later in the judgment Buckley L.J. comments on
Marriott
v. Chamberlain
as follows:-
“Lord
Esher in
Marriott
v. Chamberlain
said:
‘
The right to interrogate is not confined to the facts directly in issue, but
extends to any facts the existence or non-existence of which is relevant to the
existence or non-existence of the facts directly in issue’.
This
is relied on by the Plaintiff. It is not, I think, sufficient for his purpose.
The interrogatories may, it is true, extend beyond facts directly in issue, but
the Plaintiff is not entitled to ask the Defendant upon what line of facts he
is going to rely as relevant to the existence or non-existence of the facts
directly in issue. Shortly put, the interrogatory seems to me inadmissible,
because it asks the Defendant on what line of facts he is going to rely in
support of his case.”
50. It
is possible that this aspect of the Irish law can be formulated in the same way
as was done by Buckley L.J. in
Hooton.
51. It
is clear that under Irish law interrogatories may be delivered for two distinct
purposes -
(a) To
obtain
information
from the interrogated party about the issues
arising
in the action - in which case they must relate to issues raised in the
pleadings, either directly or indirectly, but not to the evidence (I would
suggest "but not
otherwise
to the evidence") which a party wishes to adduce to establish his case and
certainly not on the line of evidence which the party interrogated intends to
adduce at trial.
(b) Interrogatories
may seek
admissions
about facts in issue (both directly and facts tending to support those facts)
provided they are not fishing for the other side’s evidence.
52. Furthermore,
interrogatories seeking admissions as to the existence of and signatures to
documents which are identified will normally be allowed unless there are
special reasons in the interests of justice why they should not.
In
Mercantile
Credit Company of Ireland Limited
Costello J. (as he then was) at page 115 set out one of his conclusions as
follows:-
“Interrogatories
which seek
admissions
about the facts surrounding
documents
identified in discovery Affidavits must relate to the issues raised in
the
pleadings and cannot be used as a means to prove the interrogating
party’s
case.”
53. I
must confess to a difficulty in relation to the last phrase of that conclusion.
Cotton L.J. in
Attorney
General v. Gategaskel
(1882: 20: CH.D.519 at page 528) is cited in
Mercantile
Credit Company of Ireland Limited
(page 111) as follows:-
“Discovery
is not limited to giving the Plaintiff a knowledge of that which he does not
already know, but includes the getting of an admission of anything which he has
to prove on any issue which is raised between him and the Defendant ... The
object of the pleadings is to ascertain what the issues are, the object of
interrogatories is not to learn what the issues are, but to see whether the
party who interrogates cannot obtain an admission from his opponent which will
make the burden of proof easier than it otherwise would have been.”
54. The
purpose of exhibiting interrogatories is to seek admissions which will become
evidence to be relied upon by the interrogating party. They will not prove the
entire of that party’s case but will lighten the burden of so doing to
the extent that certain elements required to be proved will be established in
the replies. I am unable to see, therefore, how admissions about facts "cannot
be used as a means to prove the interrogating party's case".
55. Subject
to the foregoing, I consider that the principle tests are established in
Mercantile
Credit Company Limited
as adopted in
McCole,
and
Woodfab.
It is in this context furthermore that I understand the observations of Lynch
J. in
Bula
Limited
(page 405) when he said:-
“Interrogatories
to be allowable must be as to facts in issue or facts reasonably relevant to
establish facts in issue. Interrogatories as to mere evidence as distinct from
facts or as to opinions or matters of law such as the meaning or effect of
documents or statements or conduct are not permissible.”
56. I
would comment on these principles set out in the High Court authorities as
follows:-
(a) The
Supreme Court appears to me to place less emphasis than do these cases on the
fact that interrogatories are the exception rather than a normal step in
pre-trial case preparation which should be encouraged rather than the reverse;
(b) I
fail to understand the proposition that admissions made to interrogatories may
not be used to prove the interrogating party's case; and
(c) with
regard to the admittedly difficult distinction between facts in issue (which
are a permissible subject of interrogatories) and evidence of those facts
(which is not), it seems to me that the formulation of Buckley L.J. in
Hooton
v. Dalby
(to the effect that one may interrogate as to facts which tend to support one's
case, or to impeach that of one's opponent, but not as to facts which support
(or disclose?) one's opponent's case) provides a useful gloss on the somewhat
delphic formulation of Lord Esher M.R. in
Marriott.
Subject to these comments, I adopt these principles and apply them here.
57. This
latter peregrination through the authorities may indeed have clarified little.
For myself, however, I can adopt the words of T.S. Eliot in Little Gidding
where he says:-
"We
shall not cease from exploration
And
the end of all our exploring
Will
be to arrive where we started
And
know the place for the first time."
(Four
Quartets: Little Gidding)
The
interrogatories - do they or any of them satisfy the test?
The
Primary Interrogatories
58. There
are a large number of these. In the case of the first Defendant, I consider he
should answer all save No. 17 (which is unclear). In the case of the fourth
Defendant, I consider he should answer all.
The
Supplementary Interrogatories
59. The
Plaintiff furnishes the Court with a sample of new interrogatories proposed
comprising three questions in relation to
"check
no X"
.
I take it that the Plaintiff seeks to exhibit these three interrogatories in
relation to each of the cheques in the primary interrogatories.
60. In
relation to these I am not prepared to compel any of the Defendants to reply to
questions number 1 and 2. I consider that in the context of the allegation of
fraud it would be unjust to the Defendants to require them to answer these two
questions as they raise queries in relation to authorisation, which goes close
to the heart of the case. Not only would it be unjust but it seems to me that
these questions relate to facts which are capable of supporting the Defendant's
case (given that wrongdoing is denied) and these questions, therefore, seek the
Defendants' evidence which is not permissible. In regard to the third question
which relates merely to the fact or otherwise of payment, I see no objection to
it and will give the Plaintiff leave to exhibit question 3 of the sample
interrogatory in relation to any, some or all of the cheques referred to in the
primary interrogatories.
POSTSCRIPT
61. At
the conclusion of the hearing before me Mr Sanfy B.L. told the Court that his
solicitor had been informed the by Irish solicitors acting for Cater Allen that
they had written to the Plaintiff's solicitors stating that their clients were
not alleging any loss arising out of the impugned transactions in the present
case and were not alleging fraud against the Defendants. The relevant letters
(both dated the 28th January, 2000) were produced and I have read them. In
summary they make the points that
(a) Cater
Allen has been requesting various documents from the Liquidator without success
to date.
(b) They
had "already clarified" their position with regard to the £200,000
sterling to the effect that this transaction had been clarified to their
client's satisfaction - and that the further transactions involving
£385,445.57 and £551,462.69 sterling respectively had also been
clarified to their client's satisfaction;
(c) Their
clients still believe that very substantial monies are due arising out of the
mismanagement of the Plaintiff company's affairs and in this context they were
looking for a relevant insurance policy;
(d) Whilst
their clients alleged mismanagement and gross negligence
"however
our client does not claim that these funds have been misapplied or fraudulently
misappropriated";
(e) Their
clients had never sought to become involved in the present litigation, and
(f) Mr
Nolan (the individual employed by Cater Allen who dealt with the Plaintiff) is
no longer in their employ and should be contacted directly by the Plaintiff if
they so wished.
62. Mr
Shipsey S.C. submitted for the Plaintiff that this reinforced the need for
answers to the interrogatories because there was now a clear risk that the
relevant Cater Allen witnesses would not be available.
63. Mr
Sanfy B.L. said that the correspondence did not say, in terms, that the witness
would not be available. He also insisted that since no complaint was being
made by the alleged injured party, the litigation was futile. Furthermore,
there were indications in that correspondence that the Liquidator knew before
he swore his affidavit that Cater Allen were satisfied at least insofar as the
£200,000 amount was concerned and that the Liquidator had allowed a
misleading impression to be conveyed to the Court. Mr O'hOisin submitted that
in my discretion I should refuse to compel interrogatories and Mr McCullough
submitted that a test of fairness overrode all other tests and that it would
clearly be contrary to the principle of fairness if, in these circumstances the
Liquidator was not obliged to call witnesses who would be subject to cross
examination. Mr Marray B.L. emphasised that the Plaintiff was acting on behalf
of Cater Allen who had now effectively withdrawn the complaint as made by the
Plaintiff.
64. In
reply Mr Shipsey asserted that the Liquidator's affidavit was prepared before
this correspondence and he denied that the Liquidator was aware that Cater
Allen was satisfied as to any of the matters impugned.
CONCLUSION
65. The
Liquidator has responsibilities to all the creditors of the Plaintiff and not
only to Cater Allen. The latter's attitude as revealed in the foregoing
correspondence may well impact on his conduct of the trial but I do not agree
that the proceedings are necessarily wholly futile, nor am I prepared to infer
from this correspondence that the Liquidator has misled the Court. I do agree,
however, as indicated in the body of this judgment, that it would not be fair
to compel the Defendants to answer the first two of the three proposed
supplementary interrogatories and I do not think this position is altered by
any difficulty which the Liquidator perceives in procuring Cater Allen
personnel or Mr Nolan to give evidence at the trial. For these reasons I do
not think I should change the conclusion which I had already reached.
DOC
No. THJOS0302
1,
2, 3, (not 4); 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21,
22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41,
42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61,
62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81,
82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100,
101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116,
117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132,
133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148,
149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164,
165, 166, 167, 168, 169, 170, not 171, 172, 173, 174, 175, 176, 177, 178, 179,
180, 181, 182.
66. With
regard to the second named Defendant 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,
14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33,
34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53,
54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73,
74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93,
94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110,
111, 112, 113, 114, 115, 116, 117, 188, 119, 120, 121, 122, 123, 124, 125, 126,
127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142,
143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158,
159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174,
176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186.
67. Regarding
the third named Defendant 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15,
16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35,
36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55,
56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75,
76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95,
96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111,
112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127,
128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143,
144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159,
160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175,
176, 177, 178, 179, 180, 181, 182, 183, 184, 185.
68. In
the case of the fourth named Defendant I consider he should answer all - 1, 2,
3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23,
24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43,
44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63,
64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83,
84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102,
103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118,
119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134,
135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150,
151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166,
167, 168, 169, 170, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182.
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