2026 IEHC 330

(5)and/or

(7)RSC and/or otherwise, converting the within proceedings to plenary proceedings, and an order or direction deeming that the statement of grounds and the statement of opposition shall be the statement of claim and defence respectively.

1. I will deal firstly (and quite briefly) with the application to convert the within proceedings to plenary proceedings. I say “briefly” because, in truth, the main focus of the hearing was the relief seeking the cross-examination of deponents. I will start with a summary of the parties’ arguments on converting the judicial review proceedings to plenary proceedings. Applicants’ submissions on converting the judicial review proceedings to plenary proceedings
2. The within proceedings were commenced by originating notice of motion on foot of the grant of leave. Thereafter, according to the applicants, material conflicts of facts emerged. In the applicants’ submission, the court retains a discretion at any point to convert proceedings to plenary proceedings, and that the court has an inherent jurisdiction to do so in any judicial review proceedings. It is contended that the parties are agreed that there are material errors of fact in dispute. The respondents have submitted no affidavits dealing with the motion (for instance, pointing to prejudice were the court to accede to the within application). 9
3. It is noteworthy that, in several places within the respondents’ affidavits, there are accusations that the applicants are being untruthful. This is the case even though the respondents have not sought cross-examination of the applicants or of any of their deponents. Such is the level of factual dispute in the case that the court should now avail of its power to convert the proceedings to plenary proceedings. Respondents’ submissions on converting the proceedings to plenary proceedings
4. In response, the respondents submit that no proper basis has been advanced for converting the proceedings to plenary proceedings. The core issues in the case involve pure issues of law. The applicants sought and were granted leave to proceed by way of judicial review, and the affidavits filed since do not give rise to material factual disputes that require oral evidence, still less an order converting the proceedings into plenary proceedings.
5. The respondents dispute the relevance or applicability of DPP v. Galvin [2020] IECA
6. That case concerned a constitutional challenge to legislation that is not in play here. The Court of Appeal noted in Galvin that plenary proceedings are the default position concerning constitutional challenges to legislation.
7. The respondents rely on the decision of Simons J. in Abdelaatti v. College of Anaesthesiologists of Ireland [2024] IEHC
8. They submit that, where an application is made to convert proceedings to plenary proceedings after opposition papers have been filed, the most important matter for determination is whether there is a material factual dispute which requires oral evidence. In addition, other considerations come into play, such as whether a large number of witnesses may be required; whether the evidence is technical or complex, such that it would be better received by way of oral testimony; whether the applicants may need to subpoena witnesses who might not be prepared to provide adequate evidence voluntarily; and whether the discovery of documents is likely to be required. 10
9. The respondents submit that the vast majority of the alleged disputes of fact identified by the applicants are either not disputes of fact at all, or are not central to the disposition of the question concerning the lawfulness of the suspension. In these circumstances, the order should be refused. Analysis of the application to convert the proceedings to plenary proceedings
10. In my view, the respondents make a valid point in submitting that, as a matter of logic, the court’s discretion to convert judicial review proceedings to plenary proceedings is one that should be exercised more sparingly than permitting the cross-examination of affidavits. As a general rule, an applicant seeking such a conversion order would ordinarily need to be able to demonstrate that the cross-examination of deponents on affidavit would be an inadequate mechanism for the just resolution of the dispute.
11. I note that the grounding affidavit of Ms. Hughes runs to some 34 paragraphs. Only one of these paragraphs – para. 33 – addresses the relief seeking an order converting the proceedings to plenary proceedings. The grounding affidavit does not outline, in a detailed way, why the applicants are now seeking to change course at this stage of the litigation.
12. In reality, the focus of the applicants’ submissions at hearing centred on the question of cross-examination, rather than converting the proceedings to plenary proceedings.
13. In the circumstances, I am not satisfied that the applicants have identified a sufficient basis for converting the proceedings to plenary proceedings. Such concerns as have been advanced can be addressed in the context of the other two motions. For reasons that will become clear, I propose to deal with the remaining two motions together as they involve a certain degree of overlap. I will start by summarising the parties’ submissions on the crossexamination issue. 11 Summary of the applicants’ submissions on the application for cross-examination
14. The applicants submit that these are unusual judicial review proceedings insofar as they are replete with material factual disputes. The respondents have taken issue with almost all factual aspects of the case put forward by each applicant. The necessity for cross-examination arises because the respondents have chosen to put in issue material aspects of each applicant’s case. It is essentially the respondents who dispute the factual case put forward by the applicants.
15. Focusing on the affidavit of D/I Watters, the applicants point to the fact that the detective inspector asserts that each of the applicant’s papers do not accurately describe the factual background to their suspensions. Further, D/I Watters’ affidavit states that there are a series of material errors and omissions in each of the applicant’s statements of grounds and affidavits, together with surprising differences between what each applicant asserts in these proceedings and what they asserted in previous proceedings brought in
17. The applicants identify several factual controversies which they say require the cross- examination of each of the deponents. I will address each of these below.
18. Turning to the applicable legal principles, the applicants submit that cross-examination will usually be directed where a conflict of fact on the affidavits exists that cannot be justly resolved without such cross-examination. The applicants rely upon the leading case of RAS Medical Limited v. RCSI [2019] 1 I.R.
20. The applicants refer to the respondents’ reliance on the decision of the Court of Appeal in Hegarty v. Commissioner of An Garda Síochána [2021] IECA 328 and submit that that authority involved very different facts and is therefore distinguishable. Unlike Hegarty, the resolution of certain facts in dispute in the present case, as identified in the grounding affidavit of Ms. Hughes, is essential to the resolution of the proceedings.
21. Finally, the applicants point to the important principle emphasised by the Supreme Court in RAS Medical, namely that the onus of proof in judicial review proceedings rests on 12 the applicant and that the resolution of factual disputes on affidavit cannot be undertaken by the court, absent cross-examination. The applicants invoke that important authority in seeking an order directing the cross-examination of the five deponents concerned. Summary of the respondents’ submissions on the application for cross-examination
22. The respondents submit that, firstly, while the applicants’ submissions assert that the proceedings are replete with material factual controversies, in truth the proceedings principally involve the determination of issues of law. Secondly, the respondents submit that the “material factual conflicts” identified by the applicants are either not factual conflicts at all, or do not comprise conflicts which are central to the resolution of the proceedings so as to require crossexamination.
23. While their primary position is that cross-examination is not required on any issue, the respondents submit that, without prejudice to this position, any cross-examination should be limited to the affidavits sworn by Detective Sergeant Robert Madden (D/S Madden) and Chief Superintendent Michael McNulty (C/S McNulty), to deal with the discrete factual matters referenced in those affidavits.
24. Moreover, in both written and oral submissions, the respondents rely heavily on the decision of Noonan J. for the Court of Appeal in Hegarty, which emphasises the principle that cross-examination in judicial review proceedings is a rarity. The respondents also rely on the decisions of Kelly J. (as he then was) in IBRC (in special liquidation) v. Moran [2013] IEHC 295 and of Barrett J. in Dunnes Stores v. Dublin City Council [2016] IEHC
26. In oral submissions, counsel for the respondents brought the court through the various disputes as to fact purportedly identified in the grounding affidavit of Ms. Hughes. With regard to the disputed issue as to whether the applicants acquiesced in the pausing of the disciplinary proceedings pending the completion of the criminal proceedings, the respondents submit that, 13 while the applicants dispute the characterisation of their actions as acquiescence, they do not dispute the facts set forth by Supt. Kennedy that are relied on to support this characterisation. The respondents say that there is a fundamental difference between a material dispute of fact and a dispute about inferences that can be drawn from undisputed facts. They urge that the “dispute” as contended for by the applicants falls within the latter category.
27. Turning to the second disputed issue as to whether the applicants were treated differently to other members who faced similar allegations, the respondents say that this is quintessentially a matter of law. This point concerns paras. 8, 9 and 10 of C/S Gunne’s supplemental affidavit sworn on the 2nd May
28. The respondents submit that it would be inappropriate for C/S Gunne to be required to undergo a potentially roving cross-examination which would require her to justify and differentiate between dozens of other cases. These are matters that are not covered in her own affidavit, and the applicants are effectively seeking to undertake a fishing expedition through cross-examination. Case law such as Hegarty deprecates such an approach.
29. Thirdly, in relation to the alleged dispute as to whether the applicants know the reasons for their suspensions, the respondents say that this, again, is a question of law which can be amply addressed at the substantive hearing in counsel’s submissions. A fishing expedition into the evidence of these members of An Garda Síochána, in order to allow the applicants to test whether fair procedures have been adhered to, would not be appropriate.
30. Fourthly, the respondents address the alleged dispute concerning the characterisation of the investigations as “complex”. The respondents say that the question of whether the relevant investigations were complex is one of opinion, and it is an opinion which C/S Gunne is qualified or entitled to make. A dispute about an opinion is not the same as a material factual conflict - which requires cross-examination - and the issue is not central to any finding that the court must resolve. As per Hegarty, permitting cross-examination on this basis would “open 14 the door to a potentially roving cross-examination designed to probe the rationale and mindset of the Commissioner in writing the letter, something which is impermissible”.
31. Fifthly, the respondents address the claim that there is a reckonable dispute as to whether C/S Gunne reviewed the file. It is urged that this is mere assertion by the applicants, without any means of knowledge or evidence, and amounts to a contrived creation of an alleged conflict.
32. Sixthly, the respondents address individual aspects of the affidavits in respect of which cross-examination is sought. I will address these points in my analysis below. Relevant rules of court and case law applicable to the application for cross-examination
33. I will commence my analysis of the issues by examining the relevant Rules of Court and some themes from the case law. I will then consider the specific contents of the respondents’ affidavits to which objection is taken and in respect of which an order for crossexamination is sought. I will then endeavour to apply the applicable legal principles to the remaining two motions before the court.
34. The rules relating to affidavits are set out within Order 40 RSC. Rule 8 (formerly rule 4) provides: “Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, and shall state his means of knowledge thereof, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted. The costs of any affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall not be allowed.”
35. As noted in Delany and McGrath on Civil Procedure, 5th Ed., (Round Hall, 2023) at para. 21-88, the rule lays down the important principle that, except in interlocutory 15 applications, an affidavit should be confined to facts within the first-hand knowledge of the deponent. In other words, a deponent cannot give hearsay evidence on affidavit. The reason why the inclusion of hearsay in an affidavit is generally not permissible is because the deponent cannot be cross-examined on the hearsay assertions, and this puts the opposing party at a considerable disadvantage.
36. The authors note that rule 8 also requires that an affidavit should be confined to averments of fact by a witness: “Although it is common and can sometimes be helpful for an affidavit to summarise the arguments made by a party, it should not be argumentative or contain legal submissions” (para. 21-93).
37. In a number of cases, the courts have deprecated the practice of including legal argument in affidavits. In this regard, see Tracey v. Bowen [2005] 2 I.R. 528 and the leading case of RAS Medical which I consider further below.
38. In Tracey v. Bowen, Clarke J. (as he then was) stated: “It is appropriate to reiterate that the primary purpose of an affidavit is to place evidence before the court. While it may be permissible and indeed in certain cases useful if the affidavit makes brief reference to the principal contentions which the party concerned seeks to make (in that it thereby puts the other side upon notice of the principal contentions that would be made) any such contentions should be expressed in unemotive terms. The purpose of permitting any latitude in the making of argument through affidavit is simply to permit a party to draw attention to the arguments that are intended to be made and not for the purposes of advocacy. If it is desired to reduce argument by way of advocacy to writing then same should be done by means of a written submission to the court rather than contained in flamboyant language in an affidavit.” (emphasis added) 16
39. Order 40, rule 16 (formerly rule 12) RSC provides as follows: “The Court may order to be struck out from any affidavit any matter which is scandalous and may order the costs of any application to strike out such matter to be paid as between solicitor and client”.
40. In Goode Concrete v. CRH Plc [2011] IEHC 310, Cooke J. stated at para. 12: “For the purpose of O. 40, r. 12 of the Rules of the Superior Courts, allegations made on affidavit may be “scandalous” when they are…so gratuitous and vexatious in relation to the subject matter of the cause as to amount to an abuse by a party of the privilege that attaches to evidence given in the course of litigation.”
41. There seems to be a degree of tension in the case law on the question of whether the court has jurisdiction to strike out of an affidavit material that is not scandalous but is irrelevant or inadmissible, such as hearsay evidence.
42. In Director of Corporate Enforcement v. Bailey [2007] IEHC 365, Irvine J. (as she then was) was prepared to order the exclusion of significant portions of the applicant’s affidavits which she was satisfied the applicant would be unable to prove at the hearing. She did this even though the impermissible evidence in question could not be described as either scandalous or vexatious. The decision of Irvine J. was upheld by the Supreme Court ([2011] IESC 24). While different reasons were given in the Supreme Court judgments, Hardiman J. endorsed the approach of Irvine J., stating: “I consider it would be a considerable injustice to the respondents in the underlying action if there were no machinery for the excision of material which is clearly hearsay or otherwise clearly inadmissible, and I find sufficient warrant for the relief that this Court can entertain such an application in Order 40, Rule 4.”
43. As noted in Delany and McGrath on Civil Procedure at para. 21-107, the law on this discrete issue is not settled. The authors offer the view that the approach adopted by Irvine and 17 Hardiman J.J. in Bailey is to be preferred over countervailing approaches such as the decision of Cooke J. in Goode Concrete.
44. I have already referenced the two leading cases on applications for leave to cross- examine in judicial review proceedings, namely the decision of the Supreme Court in RAS Medical and the decision of the Court of Appeal (Noonan J.) in Hegarty. I will now consider these authorities in a little more detail.
45. RAS Medical concerned an application by a private medical clinic for judicial review of a decision of the RCSI refusing the applicant’s application for accreditation in respect of a masterclass in plastic surgery. The applicant obtained discovery which, on one interpretation, indicated that the decision to refuse accreditation was made by reference to new guidelines that had not been published online at the time of the applicant’s application. The applicant challenged the refusal of accreditation on the basis that, inter alia, it had complied with the guidelines that were in force on the date it submitted its application.
46. The discovery documents in question were exhibited to the applicant’s affidavit without objection from the respondent. However, the RCSI’s affidavit indicated that the applicant’s application had been dealt with under the original guidelines, not the new guidelines. There was therefore a discrete factual issue arising from the RCSI’s affidavit and the documentary evidence before the court, which was central to the court’s determination. Importantly, the applicant did not seek to cross-examine the respondent’s deponent with a view to resolving the conflict. The High Court (Noonan J.) accepted the sworn and “uncontroverted” evidence of the respondent on this issue and refused certiorari (see [2016] IEHC 198).
47. The applicant appealed this decision to the Court of Appeal and argued that the High Court erred in not taking the discovered documents into consideration. The Court of Appeal held that the discovered documents were admissible and should be taken into consideration in determining whether the refusal of the application for accreditation had been decided by 18 reference to the new guidelines. The court found that the respondent had, as a matter of fact, wrongly applied the new guidelines and allowed the appeal (see [2017] IECA 228).
48. The respondent obtained leave to appeal to the Supreme Court. Allowing the appeal and setting aside the order of certiorari, the Supreme Court held in material part as follows:

(1)It was inappropriate for sworn affidavit evidence to be rejected by reference to either other sworn affidavit evidence or documentary materials without giving the deponent concerned an opportunity to answer questions as to why the sworn evidence should not be regarded as credible or reliable.

(2)The onus was on a party who contended that sworn affidavit evidence should not be accepted, in respect of any point of fact material to the court’s final determination, to ask the court to take appropriate measures, such as granting leave to cross-examine, so that questions concerning the credibility or reliability of the evidence concerned could be put to the witness and the court could reach a sustainable conclusion as to the accuracy or otherwise of the evidence concerned.

(3)It was inappropriate to use affidavits as a form of quasi-legal or factual argument, with a detailed analysis of the facts and arguments as to why the facts as proposed by the side concerned should be accepted. Such material had no place in an affidavit, which should be confined to evidence. The inclusion of argumentative material in an affidavit did not give it any greater status than it would have had if it had been included, where it should have been, in submissions (written or oral). 64. Butler J. observed in Bayview Hotel (Waterville) Limited [2022] IEHC 516 that the implications of RAS Medical are “far-reaching” because it makes clear that the effect of not cross-examining a deponent will generally be that the court resolves the issues of fact against the party that bears the burden of proof. The applicants in the present cases rely heavily on this point. 19 65. Even though the Supreme Court delivered judgment in RAS Medical some seven years ago in February 2019, it seems to me that the full ramifications of the judgment on crossexamination orders in judicial review cases have yet to fully play out. 66. Two particular passages from the judgment of Clarke C.J. in RAS Medical were relied upon in Bayview Hotel before Butler J.: “88. Where a party wishes to assert that evidence tendered by an opponent lacks either credibility or reliability, then it is incumbent on that party to cross-examine the witness concerned and put to that witness the basis on which it is said that the witness's evidence should not be accepted at face value. It is an unfair procedure to suggest in argument that a witness's evidence should not be regarded as credible on a particular basis without giving that witness the opportunity to deal with the criticism of the evidence concerned. A party which presents evidence which goes unchallenged is entitled to assume that the evidence concerned is not contested. However, there may, of course, be legitimate debate about whether the evidence, even if accepted so far as it goes, is sufficient or appropriate to establish the facts necessary to resolve the case in favour of the party tendering the evidence in question… 92. But it is frankly not appropriate for parties to enter into controversy as to the facts contained either in affidavit evidence or in documents which are admitted before the court without successful challenge, without exploring the necessity for at least some oral evidence. If it is suggested that there are facts which are material to the final determination of the proceeding and in respect of which there is potentially conflicting evidence to be found in such affidavits or documentation, then it is incumbent on the party who bears the onus of proof in establishing the contested facts in its favour to use appropriate procedural measures to ensure that the potentially conflicting evidence is 20 challenged. Where, for example, two individuals have given conflicting affidavit evidence and where it is considered that a resolution of the dispute between those witnesses is necessary to the proper disposition of the case, then there has to be crossexamination and the onus in that regard rests on the party on whom the onus of proof lay to establish the contested fact.” 67. In light of these important passages, Butler J. in Bayview Hotel held, “with some reluctance”, that the petitioner in that case had not discharged the evidential burden as regards proof of the debt in question, even though she felt that, on the existing state of the evidence, she would probably prefer the petitioner’s account over that of the respondent. Applying the logic of RAS Medical, Butler J. found that she was compelled to accept the respondent’s account on affidavit, notwithstanding its demonstrated frailties, because the petitioner (who bore the onus of proof on the issue) had not cross-examined the respondent and was therefore precluded from inviting the court to reject the respondent’s account. 68. As noted in Delany and McGrath on Civil Procedure, the general or orthodox approach in judicial review, as evidenced in cases such as Hegarty, has been that leave to cross-examine will only be granted if there is a conflict of fact on the affidavits that must be resolved in order to determine the proceedings before the court. In Hegarty, Noonan J. explained the rationale for this general approach. He observed that cross-examination in applications for judicial review is relatively rare. This is because judicial reviews are concerned with issues of pure law arising in the process under challenge, rather than the resolution of factual disputes between the parties. Therefore, cross-examination is unusual in such cases (para. 34 of the judgment of Noonan J.). 69. Having noted the general position, however, Noonan J. continued at para. 35 as follows: “To the extent that the public body concerned may dispute the facts alleged by an applicant for judicial review, if the court cannot adjudicate on the question of law 21 raised without first resolving the dispute of fact, then cross-examination may not only be appropriate but essential. There must however be a genuine dispute of fact arising. It is not sufficient for the applicant to merely swear that he or she does not accept a particular state of affairs without putting alternative facts before the court which the applicant says are the true facts.” 70. Noonan J. stated that a mere denial or non-acceptance of facts deposed to by a respondent cannot, without more, give rise to a right to cross-examine. Were that to be the position, cross-examination would take place in virtually every case. Even if there is a genuine dispute on the facts and opposing versions of events are advanced by the parties, crossexamination will, in general, only be permitted where the resolution of that conflict is essential to the determination of the legal issues that arise. 71. The facts of Hegarty appear to have been reasonably clear-cut. The essential ground of appeal advanced by the Commissioner in that case was that there was, in reality, no factual dispute between the parties which could justify cross-examination, because the sole issues arising were matters of law (para. 30). Moreover, the primary basis upon which the motion seeking cross-examination was advanced was that it would be necessary to determine whether the particular deponent was purporting to give hearsay evidence (para. 19). 72. The judgment in Hegarty does not expressly mention RAS Medical. Nor does it address the decision of O’Donovan J. in Director of Corporate Enforcement v. Seymour [2006] IEHC 369 where the High Court was prepared to expand the circumstances in which crossexamination would be permitted. 73. In Seymour, the applicant sought a disqualification order pursuant to section 160 of the Companies Act 1990 against the respondent, arising from a report of inspectors appointed under the Companies Act 1990 to investigate the affairs of National Irish Bank Limited. A number of adverse findings against the respondent, who had been chief executive of the bank, 22 were made. The respondent swore a number of affidavits in response to the application in which he did not materially dispute the facts averred to in the affidavits sworn on behalf of the applicant, but strenuously disputed the inferences drawn from those facts and the opinions that the inspectors had formed from the evidence before them. 74. The applicant in Seymour applied for leave to cross-examine the respondent on those affidavits on the basis of the conflicts relating to the inferences and opinions of the inspectors. O’Donovan J. held that it is at the discretion of the court whether to direct cross-examination, and that this discretion should only be exercised in favour of permitting it if the court considers that it is necessary to dispose of the issues that the court has to determine, and where it becomes apparent from the affidavits that there are material conflicts of fact between the deponents. However, O’Donovan J. went on to state that “where it is debatable as to whether or not the cross examination of a deponent on his or her affidavit is either necessary or desirable, the court should tend towards permitting the cross examination”. 75. Of relevance to the present cases, O’Donovan J. held that it did not follow from the fact that the respondent was not disputing the facts relied upon by the inspectors to support their findings that the applicant was not entitled to test, by way of cross-examination, the respondent’s interpretation of those facts. He held that, where the opinion of the inspectors was challenged, notwithstanding that the facts upon which the opinion was based were not disputed, the court “was entitled to know the mindset of the challenger”, and that the only way in which this could be done was by confronting the challenger under cross-examination. Therefore, he held that the applicant was entitled to test on cross-examination the reliability and reasonableness of the contrary views expressed by the respondent. On this basis, O’Donovan J. held that the interests of justice required cross-examination to take place. 76. The authors of Delany and McGrath on Civil Procedure offer the view at para. 21-120 that the effect of the decision in Seymour appears to be that it is not always necessary to identify 23 a material conflict of fact, the resolution of which is necessary to determine the proceedings. It may suffice if the court is satisfied that there is a dispute regarding the inferences to be drawn from primary facts or the opinions expressed by expert witnesses, or that cross-examination is desirable in order to test the competing positions of the parties or to allow the further elucidation of matters averred to on affidavit. 77. In Irish Bank Resolution Corporation Ltd v. Quinn [2012] IEHC 510, Kelly J. (as he then was) rejected the contention that O’Donovan J. in Seymour had gone beyond the parameters of the previous authorities. 78. Nonetheless, the authors of Delany and McGrath on Civil Procedure go on to note that subsequent decisions have reiterated the orthodoxy that there has to be a conflict of evidence on affidavit, the resolution of which is necessary to decide an issue in the proceedings before the court, before cross-examination is warranted (see IBRC v. Moran). Application of legal principles to the application for cross-examination 79. The above outline of relevant case law is not intended to be a definitive statement of the precise circumstances in which cross-examination will be allowed in judicial review proceedings. The case law emphasises that a judge hearing such an application enjoys a discretion in the matter and further, that applications for liberty to cross-examine tend to be influenced by the individual facts of a particular case and, of course, the precise contents of the affidavits sought to be cross-examined. As the case law summarised above tends to demonstrate, there is no one-size-fits-all rule governing all applications, irrespective of their individual circumstances. It should also be borne in mind that in RAS Medical itself there was a clear factual issue in dispute that was central to the determination of the proceedings, namely the question of whether the old or the new set of guidelines had been applied to the accreditation application. 24 80. It bears repeating that, in the present cases, the applicants are seeking to cross-examine the following deponents: 81. • Chief Superintendent Catharina Gunne; • Detective Inspector Mark Watters; • Superintendent Paul Kennedy; • Detective Sergeant Robert Madden; and • Chief Superintendent Michael McNulty. I have had the opportunity of rereading all relevant affidavits in the proceedings. I will now address the reasons the applicants have put forward for requiring cross-examination, and I will endeavour to do so in the context of the themes developed in the case law. Affidavits of Chief Superintendent Catharina Gunne 82. C/S Gunne has sworn two affidavits, the first in February 2025 and the second on 2nd May 2025. The first observation to be made is that the applicants are correct in saying that parts of the affidavits contain argumentative material and legal submissions, in breach of the principles identified by Clarke J. in Tracey v. Bowen and RAS Medical. 83. While the argumentative element is not perhaps at the most egregious end of the scale when compared with some other judicial review cases that come before the courts, C/S Gunne’s affidavit undoubtedly strays beyond averments of fact. In my view, portions of her affidavits impermissibly stray into matters of advocacy. 84. In fairness to the respondents, however, a similar criticism can be made of the applicants’ affidavits which are also not confined to factual averments and stray into matters of advocacy and argument. 85. C/S Gunne’s grounding affidavit also contains hearsay material at para. 18 as to what was said between Garda Griffin and Supt. Paul Kennedy on 27th January 2021. Such hearsay 25 commentary should not have been included unless it was expressly indicated that the relevant first-hand evidence would, in due course, be offered. Nonetheless, it seems to me that, while the hearsay complaint was justified, it has largely been addressed by the respondents filing affidavits from the relevant deponents with first-hand knowledge of the matters in dispute. 86. Elsewhere within para. 18, C/S Gunne states her belief that the applicants fully acquiesced in deferring the disciplinary investigation pending the outcome of the criminal one. The respondents rely on the factual issue of acquiescence as a full or partial answer to the applicants’ legal argument that the suspensions are invalid on grounds of delay and unfairness. 87. At para. 27, C/S Gunne says that it is not accepted that the applicants have been treated differently than other members who have been investigated in relation to similar allegations. At para. 35, she states that the respondents are anxious to proceed with the disciplinary investigations as expeditiously as possible. It is noteworthy, however, that no time estimate is offered as to when the disciplinary investigation is likely to conclude or how long approximately the suspension of the applicants will endure. 88. At para. 39, C/S Gunne states her belief that it is necessary for the applicants to remain suspended from their duties while faced with an allegation of perverting the course of justice through their own actions. 89. Importantly, at para. 41(

1. i)to (vii), C/S Gunne sets out her conclusions on certain material issues arising in the case. On one view, some of these averments bear the hallmark of what Simons J. referred to in Abdelaatti as “lawyered documents” (he did not mean this in any pejorative sense). Simons J. stated that the affidavits in that particular case had been drafted with the assistance of lawyers and lacked “the clarity and precision which is the hallmark of oral evidence”. 90. It seems to me that some of the belief evidence and conclusions offered by C/S Gunne at the conclusion of her grounding affidavit – such as the statement at para. 41(
2. v)that there is 26 no role in An Garda Síochána which could be performed by Garda Griffin pending the conclusion of the investigation which would not betray public confidence – fall into a similar category to that described by Simons J. in Abdelaatti. In my view, the conclusions advanced by C/S Gunne are matters that the applicants should be entitled to explore in cross-examination in order to assist the court in assessing the competing positions of the parties. 91. While the respondents certainly have a point in contending that several of the “material factual conflicts” identified by the applicants are strained and artificial, it does seem to me that, with respect to several paragraphs within C/S Gunne’s grounding affidavit – particularly the conclusions section – there is a degree of dispute as to the inferences to be drawn from primary facts, even if those primary facts are themselves not in dispute. On the particular facts of these cases, this tends in favour of allowing some level of cross-examination. 92. Overall, I think that there is something unattractive in a party to litigation putting forward a series of conclusions on affidavit that are built around inferences that the deponent has drawn from certain facts, and which are advanced as key reasons why the other party’s case should be rejected, while at the same time asserting that the deponent’s conclusions should not be open to challenge in cross-examination. The unattractiveness of this position is compounded further where the party resisting cross-examination later asserts that the other party may not invite the fact finder to reject the deponent’s sworn evidence because there has been no crossexamination. 93. The case law that I have referenced above makes clear that the strong default rule is that judicial review should proceed on affidavit only. However, an inflexible application of the default rule could potentially give rise to unfairness, particularly in respect of the party who bears the onus of proof. 94. On the particular facts of the present cases, there are additional factors in play which, in my view, tend in favour of allowing some level of cross-examination. First, as we have seen, 27 some of the affidavits contain an unacceptable level of argument and advocacy. This makes it difficult for the trial judge to untangle strictly factual averments from the extraneous elements that have been allowed to creep into the affidavits. Allowing cross-examination may assist in untangling the facts and sifting out the surplusage. 95. Second, as we have seen, parts of C/S Gunne’s affidavits are replete with opinion evidence. It will be a matter for the trial judge to decide whether such opinion evidence is admissible and, if so, what weight should attach to it. I am deliberately not offering any view on either issue, as these are matters for trial. However, the extent of belief evidence appearing in the affidavits, coupled with the heavy overlap of argument and advocacy, renders it likely, in a general sense, that cross-examination may assist the trial judge in untangling the facts and determining the issues. Third, there appears to be a significant level of dispute in the cases as to the correct inferences to be drawn from the primary facts. 96. In coming to the conclusion that limited cross-examination should be permitted on the facts of the present cases, I am taking into account the strong emphasis placed by the Supreme Court in RAS Medical on two important themes: first, before a trial judge can be invited by a party to reject sworn evidence, the deponent concerned must be given an opportunity to answer any questions as to why the sworn evidence should not be regarded as credible or reliable; and second, the emphasis placed by the Supreme Court on the necessity for deponents to avoid including in affidavits legal argument and advocacy (save where contextually appropriate), and confining affidavits to the setting out of facts. 97. I am also taking into account the obvious point that a party making legal submissions in judicial review proceedings must do so by reference to an agreed or established set of facts. Legal submissions cannot plug evidential deficits or bridge gaps where there are genuine factual disputes. Indeed, the old adage that ‘one ounce of fact is worth several pounds of law’ continues to have relevance in modern litigation. Accordingly, there are limits to the argument 28 that a party seeking cross-examination can always make his case by legal submission. In making this observation, I am not in any sense seeking to abandon the general rule that judicial review proceedings, because they are concerned with issues of law, will not usually require cross-examination. However, the case law indicates that there may be exceptions to the general rule, and in my view this is one such case. 98. On the particular facts arising, and by analogy with the decision of O’Donovan J. in Seymour, I am persuaded that the interests of justice warrant granting liberty to the applicants to cross-examine C/S Gunne on the discrete issues mentioned above, as referenced in her affidavits. 99. It would not be helpful to be too prescriptive as to the precise matters to be covered in any proposed cross-examination. This will be a matter for the trial judge who will at all times retain a supervisory role in the conduct of the proceedings. At the same time, however, I want to make clear that the applicants do not have liberty to conduct a roving or unlimited crossexamination of C/S Gunne, as that would plainly be impermissible and would confer upon the applicants a general right to cross-examine witnesses as if this were a plenary action, which it is not. Affidavit of Detective Inspector Watters 100. My overall view with respect to the affidavit of D/I Watters is that the case made by the applicants as to the necessity for cross-examination is strained and artificial. The inspector’s comments with respect to suggested inaccuracies in the applicants’ pleadings are somewhat argumentative and do not in my view constitute material disputes of fact that are required to be resolved for the determination of the core issues in the case. The matters identified can be raised with the other deponents in respect of whom cross-examination is being allowed, and can also be addressed in submissions. 29 101. There is some element of hearsay at para. 17 of D/I Watters’ affidavit, but that has now been cured by the filing of an affidavit by D/S Madden. 102. D/I Watters does offer the belief at para. 21 that both Operation Bath and Operation Modulus, as carried out by the NBCI, were complex and difficult. In my view, that issue can be addressed in cross-examination of the other deponents and also in submissions. This issue is potentially relevant to the applicants’ ground of challenge contending that the suspensions should be invalidated on grounds of delay. 103. At paras. 24 and 26 of his affidavit, D/I Watters states that the fact that the applicants and their solicitor decided not to examine certain materials offered to them at the time of the applicants’ interviews represents an important feature of the case, given that the applicants now complain about being given inadequate information on the reasons behind their suspensions, thereby rendering them unable to make meaningful submissions. In my view, this issue does not give rise to a factual dispute such as to warrant cross-examination on this ground alone. 104. In all the circumstances, I hold that it is not necessary for the applicants to cross- examine D/I Watters. Affidavit of Superintendent Paul Kennedy 105. Supt. Kennedy’s affidavit was sworn on 2nd May 2025 and consists of seven short paragraphs. The affidavit mainly deals with the contested issue of acquiescence with respect to the discussion that Supt. Kennedy had with Garda Griffin on 27th January 2021 when he explained the nature of the disciplinary investigation. The respondents’ argument that the applicants’ delay complaint with respect to the overall length of the suspensions is answered, fully or in part, by the applicants having allegedly acquiesced in the deferral of the disciplinary process until the conclusion of the criminal investigation. In my view, it is clear from the 30 pleadings that this is a material issue, and I am therefore satisfied that the applicants are entitled to cross-examine Supt. Kennedy on this issue. Affidavit of Detective Sergeant Robert Madden 106. D/S Madden swore his affidavit on 2nd May 2025 and it too is a short affidavit consisting of some five paragraphs. D/S Madden executed the section 10 warrant on 4th October 2019 and was present for the seizure of Garda Griffin’s phone. At para. 4 of his affidavit, he refers to the applicant stating that he was told on 4th October 2019 that the NBCI was only searching his phone for communications with Supt. O’Neill. D/S Madden states that the applicant does not state who allegedly said this to him. D/S Madden goes on to say that the applicants’ averment in that regard is false and he says that no statements were made to this effect either by him or, to the best of his knowledge and belief, by anyone else. 107. At para. 5, D/S Madden refers to the applicant’s averment that he was told that he would be interviewed soon, and that whatever he said during the interview would move the applicant “from suspect to witness”. He refers to Garda Griffin’s averment that he took this to be an invitation to incriminate Supt. O’Neill. D/S Madden says this is also incorrect. He says that the applicant was not told that the investigation was limited to Supt. O’Neill, and it was not suggested to him that, if he made statements that implicated Supt. O’Neill, he would be moved from suspect to witness. 108. I am satisfied that it is in the interests of justice to allow cross-examination on these issues. It should be possible for any cross-examination on these averments to be focused and tight, and that any such cross-examination permitting the asking of specific questions on these discrete issues should not open the door to a roving cross-examination or risk elongating the trial unduly. Moreover, the parties retain the entitlement to address the trial judge on any issues as to the materiality of any proposed questions. 31 109. In the circumstances, therefore, I will permit a focused cross-examination of D/S Madden. Affidavit of Chief Superintendent Michael McNulty 110. C/S McNulty swore an affidavit on 2nd May 2025 consisting of five short paragraphs. He covers similar matters to those covered by D/S Madden. At para. 4 of his affidavit, C/S McNulty contradicts Garda Griffin’s plea that he was told by C/S McNulty on 4th October 2019 that the NBCI was only searching for communications with Supt. O’Neill. At para. 5 he refutes the alleged statement attributed to him as set out at para. 6 of the statement of grounds that he invited the applicant to incriminate Supt. O’Neill. 111. For the same reasons, I will permit a focused cross-examination of this deponent on these discrete issues. Third motion seeking the excision or striking out of affidavits 112. It seems to me that is not necessary to spend too much time on the motion pursuant to Order 40, r. 16 RSC seeking to strike out, or deem inadmissible, parts of the affidavits of C/S Gunne and D/I Watters. I say that for the following reasons. First, the hearsay complaint has largely fallen out of the case. As I understand the respondents’ position, they are no longer seeking to rely upon any hearsay references in circumstances where the issues in question are now covered by first-hand evidence from the additional deponents. 113. Second, while the court has found that aspects of the respondents’ affidavits contain argumentative material and impermissibly include legal argument, the same criticism can be levied at some of the applicants’ own affidavits. I do not think it would be helpful to start sifting out bits of the affidavits of each party, particularly if the content of the affidavits will be clarified in cross-examination. In the particular circumstances of the case, I do not understand 32 the applicants to be pressing for the striking out of the affidavits. Rather, the emphasis at hearing was on securing an order for cross-examination. 114. Finally, it need hardly be said that, with respect to any aspect of the affidavits in the substantive proceedings, it will be a matter for the trial judge to decide what weight, if any, to give to any individual piece of evidence in the case. Conclusion 115. For the reasons stated, I propose in principle to make the following orders:

(1)An order pursuant to Order 40, rule 1 RSC ordering the attendance of the following persons for the purpose of cross-examination on the issues identified above at the hearing of the application for judicial review herein: • Chief Superintendent Catharina Gunne. • Superintendent Paul Kennedy. • Detective Sergeant Robert Madden. • Chief Superintendent Michael McNulty. I will refuse liberty to cross-examine Detective Inspector Mark Watters.

(2)I will refuse the application pursuant to Order 40, rule 16 RSC seeking an order striking out part or all of the affidavits of Chief Superintendent Catharina Gunne sworn in February 2025 or Detective Inspector Mark Watters sworn on 6th March 2025.

(3)I will refuse the application pursuant to Order 84, rule 27

(5)and/or

(7)RSC seeking to convert the within proceedings to plenary proceedings. 116. I will hear the parties on final orders and costs, should that be necessary. 33 Signed: Micheál O’Higgins Appearances: For the applicants: Mark Harty SC and James Kane BL instructed by Hughes Murphy Solicitors For the respondents: Conor Power SC and Nathan Reilly BL instructed by the Chief State Solicitor’s Office 34