2026 IEHC 272

THE HIGH COURT JUDICIAL REVIEW [2026] IEHC 272 Record No. 2024/884 JR BETWEEN J. F. M. (A MINOR SUING THROUGH HIS MOTHER AND NEXT FRIEND P. S. T.) AND P. S. T. APPLICANTS AND THE MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION RESPONDENT RULING of Ms. Justice Siobhán Phelan, delivered on the 30th day of April, 2026 INTRODUCTION

1. This is my ruling on an application for leave to cross-examine the Respondent’s deponent in proceedings which are moot save as to costs arising from alleged unreasonable delay in the processing of the Applicants’ join-family visa application. 1 BACKGROUND
2. The First Applicant is a Zimbabwean citizen, resident in Zimbabwe, who while still a minor aged 14 years of age applied for a join family visa (Long Stay D) in February 2023 to join his mother, the Second Applicant, who has lived and worked in the State since 2022 and is the holder of a General Employment Permit. The First Applicant’s father also lives in the State, albeit separated from the Second Applicant.
3. At the time of the application, the Second Applicant did not have the required residence in the State to sponsor the First Applicant’s application in line with the terms of the Non-EEA Family Reunification Policy Document which resulted in the application being deferred until residency requirements were met (one year residency required to become eligible to be a sponsor).
4. The application for a join family visa was refused in March, 2024 and an appeal was lodged on the 2nd of May,
5. An application was also made to prioritise the appeal.
6. Pre-action correspondence was sent to the Minister on 23rd of May, 2024, reiterating the urgency of the application and seeking a decision on prioritisation. By letter dated the 28th of May, 2024, the Minister responded indicating the matter would be dealt with chronologically in the normal course with a view to ensuring a decision within 12 months, referring the Applicants to the processing times published online on the Respondent’s websites and without addressing prioritisation substantively.
7. Further correspondence was sent by the Applicants by letter dated the 19th of June, 2024, again seeking a prioritisation decision and pointing out the need for a fast-track system for urgent humanitarian applications, commenting that it appeared from the Respondent’s response that such a system had not been put in place. A decision was sought within a further 7 days.
8. In the absence of a response, the Applicants instituted judicial review proceedings on foot of a statement of grounds filed on the 10th of July,
9. This was little more than two months after the lodging of the visa appeal. The issue in the proceedings was whether the Respondent had unreasonably delayed in determining an application and subsequent appeal for a join family visa made on behalf of the minor child. The 2 Applicants sought, inter alia, an order of mandamus compelling the Minister to make a decision, arguing that the delay in processing the join-family visa appeal breached their rights to fair procedures and good administration. Mandamus was sought in respect of prioritisation and/or the appeal. In moving the application for leave, the Applicants extrapolated from the Respondent’s website that on then current processing times, without prioritisation, the application would not be determined until July,
11. By letter dated the 11th of July, 2024, the Minister issued a decision refusing to prioritise the appeal. In October, 2024, the judicial review proceedings were amended to challenge the 11th of July, 2024, refusal by way of certiorari and leave was granted on that amended basis.
12. On the 26th of September, 2024, the Applicants furnished authenticated birth certificates, required documents for the join-family application. Following further correspondence, on the 11th of October, 2024, the Minister maintained the refusal to prioritise.
13. Then, by letter dated the 17th of April, 2025, the Minister withdrew the 11th of July, 2024, refusal of prioritisation decision and issued a fresh decision, again refusing prioritisation. Prioritisation was refused on the basis that elective decision of the Second Applicant to depart Zimbabwe for the State and leave the First Applicant in the care of a family member did not constitute a sufficient basis to prioritise the application for a join-family visa ahead of other applications. At that time, the Minister indicated that the appeal decision was likely to issue around June, 2025, more than a year earlier than published processing times at the time proceedings were initiated indicated but in line with the Minister’s communicated 12-month target.
14. As a result of the withdrawal of the original decision, the prioritisation challenge as initially pleaded became moot. The costs of the proceedings to the 17th of April, 2025 were conceded but the Respondent maintained the right to seek costs and set off costs conceded in favour of the Applicants should the proceedings be maintained in the face of assurances of a decision within a short number of weeks. In an affidavit filed to ground opposition, the Respondent’s deponent Ms. Melissa Brennan referred to the processing and decision times published on the Department’s website which sets out: 3 “current processing and are not an indication of future processing, which may be longer or shorter depending on the numbers received in any given period and are always subject to change, as noted on the website, such as when staffing levels increase. It is anticipated that due to increased staffing levels, processing will significantly improve over the coming weeks and months.”
15. It was pointed out in correspondence on behalf of the Applicant in advance of the application for a hearing date that the assurance given was not then consistent with the updated published information on the Respondent’s website in relation to processing times. The Respondent’s website in April, 2025, indicated that a decision would not be made for at least another year on the basis that it was then taking two years and four months to process join family visa appeals.
16. The issue in the proceedings by the end of April, 2025, was then whether there had been unreasonable delay in determining the appeal to justify an order of mandamus. Opposition papers served in April, 2025 (and later filed) pleaded that the website reflected current processing and not future processing.
17. In advance of the hearing date being obtained, by letter dated the 30th of April, 2025, the Chief State Solicitor’s office stated that if the Applicants wished to continue with the proceedings and should the Minister be successful in opposing them, application would be made to fix the Applicants with the costs of the proceedings going forward. The Applicant’s solicitors queried in correspondence the time-frame suggested by the Respondents which was not consistent with that appearing on the Respondent’s website. In response it was pointed out that there was no inconsistency as it was anticipated with increased staffing levels, there would be a significant improvement in the time taken in the determination of applications and appeals.
18. Notwithstanding assurances in relation to the anticipated time-frame for a decision, the Applicants applied for a hearing date on the 23rd of May, 2025 and obtained a hearing date of the 15th of July, 2025, there being a live issue as to whether they were entitled to an order of mandamus in view of delays. 4
19. On the 9th of July, 2025, the day before the proceedings were due to be called on, the Respondent’s solicitors wrote to advise that the Respondent was processing appeals received on the 2nd of May, 2024, at that point and it was stated that a decision would issue in respect of the Applicants’ appeal (which had been lodged in May, 2024) by the 14th of July, 2025, the day before the proceedings were due to be heard. In this correspondence the Respondent indicated that it was considered that it would be wasteful to call on the proceedings at that point given that it would become moot. It is my understanding that the proceedings were duly adjourned in consequence albeit in circumstances where preparations for hearing were very advanced.
20. On the 14th of July, 2025, the day before the date which had been assigned for hearing of the judicial review proceedings, the appeal decision issued rendering the substantive proceedings moot. The Respondent maintains that the decision issued in the ordinary course, entirely unrelated to the proceedings. The Respondent points to the fact that the decision issued within the approximate timeframe as set out in the decision of the 17th of April,
22. By letter dated the 24th of July, 2025, the Applicants’ solicitors wrote to the Respondent requesting that the proceedings be struck out with an order for the Applicants’ costs. On the 23rd of September, 2025, the Chief State Solicitor’s Office wrote to the Applicants setting out that the Respondent consented to an Order for the Applicants’ costs up to the 17th of April, 2025, when the Respondent reissued the prioritisation decision but considered that the Respondent was entitled to his costs from that date onwards given that the Applicants had chosen to progress the case and had sought directions for its progression notwithstanding that the Respondent had informed them that the decision would issue within a particular time-frame, leading to the Respondent incurring costs in relation to the opposition of the proceedings.
23. On the 1st of October, 2025, the Applicants’ solicitors responded indicating that they intended to seek their costs from the 17th of April, 2025 and offset these costs against costs previously conceded in favour of the Applicants in respect of proceedings up to that date. There followed delivery of an affidavit sworn by Ms. Brennan in November, 2025, directed to costs. 5
24. The Respondent maintains that the decision issued in the ordinary chronological course. This is not accepted on behalf of the Applicants. The issues which will require to be determined on a costs application is whether a costs order should be made in favour of either party in respect of the period from the 17th of April,
25. APPLICATION FOR LEAVE TO CROSS-EXAMINE
26. By Notice of Motion dated the 4th of February, 2026, the Applicants seek an Order pursuant to Order 40 rule 1 of the Rules of the Superior Courts (RSC) requiring the attendance at a costs hearing of the Respondent’s deponent Ms. Brennan for crossexamination. The application was grounded on the affidavit of the Applicant’s solicitor and the application is presented on the basis that there are material factual disputes in the affidavit evidence, such that oral testing of that evidence is said to be necessary for the fair determination of the issue of costs.
27. In particular, the Applicants contend that cross-examination is required because of alleged inconsistencies in affidavit evidence sworn by Ms. Brennan concerning whether the Immigration Service Delivery website accurately reflected processing dates, whether those dates were updated retrospectively, the sequencing and timing of the Applicants’ appeal relative to other appeals and whether staffing changes or redeployments affected the timing of the decision in a way relevant to costs.
28. The Applicants do not accept the proposition that the decision issued in ordinary chronological course as plausible in view of the published processing times and the coincidence in timing of the decision just before the assigned hearing date. Significant weight is attached to the fact that while Ms. Brennan referred to the website as indicating current processing times prior to July, 2025, she had subsequently deposed, that the website is updated retrospectively and therefore did not reflect “current processing times”. She had explained that while processing times are published weekly, they are not reliable and “there can be a time lag between the website being updated to reflect ongoing decision making” (second Affidavit of Ms. Brennan sworn on the 7th of November, 2025). 6
29. In essence, the Applicants seek leave to cross-examine because they wish to test the Respondent’s claim that the appeal decision issued “in the ordinary course”, was unrelated to the judicial review proceedings and was not expedited or influenced by the proximity of the listed hearing date. The Applicants argue that the fact the decision issued the day before the assigned hearing date and that this date was known on the eve of the positive call-over the previous week renders this explanation implausible and warrants cross-examination, particularly when combined with the processing times indicated on the Respondent’s website both before and after the decision in this case, the said processing times suggesting a considerably longer processing period than occurred in the Applicants’ case.
30. Following the issue of the application seeking leave to cross-examine an affidavit was sworn in March, 2026, by a Higher Executive Officer in the Department of Justice in relation to the updating of the website, explaining that it is not updated concurrently and that in April, 2025, the website was not correctly updated but showed a processing date which was some two weeks behind the actual processing date. He explained that in August, 2025, he again became aware that the website had not been correctly updated. Instead of showing a processing date of the 9th of May (which was actually only a processing date a week later than the Applicants’ date despite the passage of more than three weeks since the decision in the Applicants’ case), it was still giving a processing date of 24th of April, 2024, suggesting that older applications than the Applicants’ were still being processed. He confirmed ensuring that the website was correctly updated at that time.
31. A separate affidavit was also sworn by Ms. Brennan in response to the application to cross-examine. This affidavit was filed on the 8th of April,
32. In this affidavit, she referred to the fact that processing times were positively impacted by the recruitment of additional staff and that this was why the Applicants’ appeal was dealt with faster than the period extrapolated by the Applicants and why the decision issued unrelated to these proceedings. She accepted the Applicants’ evidence as to the dates showing on the Respondent’s website at material times, confirming that the website was not properly updated on a number of occasions explaining that she was required to bring errors to the attention of the Information and Technology Division of the Department of Justice. She exhibited records in respect of twelve anonymised and redacted 7 decisions on applications processed at the same time as the applications in the Applicant’s case to show that the decisions issued in the ordinary course and in strict chronological order without regard to the existence of judicial review proceedings in this case but not in any of the other twelve cases.
33. From the affidavit of Ms. Brennan, it is apparent that the Minister opposes leave to cross-examine on the basis that there is no material factual dispute requiring crossexamination and any discrepancies (e.g. website dates) are fully explained by documentary evidence. It is the Minister’s position that the decision was made in strict chronological order, consistent with policy and cross-examination is unnecessary for resolving either the substantive issues or the costs application. Reduced processing times are explained by reference to increased staffing which was implemented incrementally from October, 2024 and the contention that the Applicants’ applications were treated no differently to others is supported by exhibited redacted records of decisions issuing at the same time as the decision in the Applicants’ case. This documentation is relied upon to demonstrate that appeals lodged at the same time were processed at the same time as the Applicant’s notwithstanding that no proceedings had been taken in those cases. ANALYSIS AND DECISION
34. Cross-examination in judicial review is rare and unusual. During the hearing of this application, I was referred to decisions in Ras Medical v. Royal College of Surgeons in Ireland [2019] 1 I.R. 63; [2019] IESC 4, M (A Minor) v. Minister for Foreign Affairs and Trade [2025] IEHC 581, In the Matter of Anvil Real Estate Limited [2025] IEHC 630, CSNA Company Limited by Guarantee v. Minister for Health, Ireland and the Attorney General [2025] IEHC 594 and Hegarty v. Commissioner of An Garda Siochana [2021] IECA
35. Of these, the only case which addresses in any way the question of cross-examination in ease of a cost application in otherwise moot proceedings is M (A Minor) v. Minister for Foreign Affairs and Trade. I was not referred to a single case in which cross-examination was ordered in moot judicial review proceedings solely for the purpose of an adjudication on costs. 8
36. While I have a jurisdiction to direct cross-examination in judicial review proceedings, it is well established that it is a discretion that should not be lightly exercised. Granting leave to cross-examine in judicial review proceedings is rare because of its nature judicial review is concerned with issues of law arising from the process under challenge rather than the resolution of factual disputes between parties. In CSNA Company Limited by Guarantee v. Minister for Health, Ireland and the Attorney General leave to cross examine was refused in a challenge to the lawfulness of a statutory instrument precisely because it was concluded that the issues for determination involved questions of law, not fact. As confirmed in Hegarty v. Commissioner of An Garda Siochana (at paras. 34, 35 and 36), it is for this reason that cross-examination will normally only arise in judicial review proceedings where the issue of law to be determined depends on the resolution of a dispute of fact.
37. The governing test for the grant of leave to cross examine, authoritatively stated in Ras Medical, is well settled. If a party wants to impugn the reliability or credibility of sworn evidence (whether by reason of conflicting sworn evidence, documentary evidence or otherwise) they must do so by cross-examination (para. 88, Ras Medical). Crossexamination may also be permitted if there is a conflict of evidence (whether arising from affidavits or documents) the resolution of which is material to the final determination of the proceedings (para. 92, Ras Medical). Leave to cross-examine will only be granted where there is a clear, genuine and material dispute of fact or credibility issue that cannot fairly be resolved on affidavit. The dispute must go to an issue central to the outcome and must be necessary to resolve the issue fairly.
38. As concluded by Clarke J. in the decision of the Supreme Court in that case: “I am also satisfied that it is inappropriate for either a trial court or an appeal court to reject sworn affidavit evidence by reference either to other sworn affidavit evidence or to documentary materials without giving the deponent concerned an opportunity to answer any reasons why the sworn evidence should not be regarded as credible or reliable. The onus is on a party who wishes to urge on a court 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 9 to take appropriate measures such as granting leave to cross-examine, so that questions concerning the credibility or reliability of the evidence concerned can be put to the witness and the court reach a sustainable conclusion as to the accuracy or otherwise of the evidence concerned.”
39. In In the Matter of Anvil Real Estate Limited Cahill J., applying the principles set out in Ras Medical, granted leave to cross-examine in a winding up petition notwithstanding that the court does not determine any factual disputes on such an application. She did so having acknowledged that cross-examination may be necessary if it is intended to impugn a deponent’s credibility and in circumstances where two deponents directly clashed, there were inconsistencies and difficulties with the evidence presented by both sides such that without cross-examination, it was concluded that it was difficult to see how a court could resolve the question of what monies had been paid for.
40. Cahill J. was persuaded that it was appropriate to give leave to cross-examine because there was a possibility of the Petition being refused on the basis of attacks on credibility without cross-examination and a consequential risk of injustice. In so deciding, she also considered that there must be “sensible limits on the scope and purpose of permissible cross-examination” and cross examination must be confined to material issues central to the question the court has to determine. She concluded that given the specific credibility challenges identified by both parties, the case fell within a category of “exceptional cases in which it would not be consistent with the fair disposition of the Petition to refuse leave to conduct cross-examination” (para. 112).
41. This case is somewhat different. I am being asked to grant leave to cross-examine on an issue which goes to the consequential matters of costs, rather than any issue required to determine the proceedings. The broader costs framework in moot judicial reviews comes from cases such as Matta v. Minister for Justice [2016] IESC 45 and Hughes v. Revenue Commissioners [2021] IECA 5; [2023] 3 IR
42. These authorities focus on whether the proceedings led to the relief sought being procured but with costs determined summarily on the affidavits. 10
43. These cases confirm that the incidence of costs in this subset of moot mandamus proceedings where a decision has issued against the backdrop of a complaint of unreasonable delay, will be informed primarily by whether the timing of the decision has been affected by the judicial review proceedings. If the decision has been expedited in response to the proceedings, then the decision-maker would have grounds for saying that the proceedings led to a benefit for the applicant who should therefore be entitled to recover legal costs against the decision maker. In M (A Minor) v. Minister for Foreign Affairs and Trade, Simons J. observed that the converse was also true and that if the administrative decision had been made in the ordinary course, unprompted by the judicial review proceedings, then there is no obvious basis upon which the applicant would be entitled to recover their legal costs.
44. It seems to me that a fundamental question is whether a determination on costs qualifies as a central issue in the proceedings such as would warrant the exercise of a discretion to grant leave to proceed by way of judicial review. The fact that I have not been referred to any precedent for the exercise of this discretion for the purpose of an adjudication on costs in moot judicial review proceedings reflects the relative novelty of this application. Instead of hearings on costs involving oral evidence, as a matter of settled practice, costs in judicial review proceedings are determined on the papers. The court in moot proceedings does not typically conduct a fact-finding inquiry akin to a trial when deciding costs. I am not aware of any Irish case in which a court has permitted cross-examination only to resolve a dispute about costs (including issues such as whether proceedings caused a decision to issue or whether a matter was overtaken by events).
45. The most closely related authority identified for the purpose of my decision in this case is indeed M (A Minor) v. Minister for Foreign Affairs and Trade. There Simons J. considered the question of costs in a moot judicial review proceedings where there was a dispute on the evidence as to whether proceedings prompted the making of a decision. The respondent filed an affidavit asserting that the timing of the decision was not influenced by the proceedings. The applicant did not believe this averment and the applicant’s suspicions were fuelled by disclosure obtained through a subject access request from which it was apparent that the decision-maker was aware of the proceedings and had sought advice in respect of same. Suspicion was further fuelled 11 by the fact that not all documentation had been disclosed. Crucially, no application was made to cross-examine the deponent. It was explained that this was for pragmatic reasons relating to the costs of pursuing discovery or cross-examination in a case where the decision was made after the filing of the proceedings but before the grant of leave, no steps in this regard had been taken.
46. Simons J. held that, in those circumstances, the applicant could not invite the court to reject or discount the sworn evidence. The judgment makes plain that where a party does not seek cross-examination or discovery, the court will ordinarily proceed based on the affidavit evidence before it. The judgment in M (A Minor) v. Minister for Foreign Affairs and Trade is particularly relevant to the issue for me on this application, however, because it confirms by necessary implication that cross-examination may be available in principle on a costs issue in a moot judicial review, when the resolution of a dispute of fact warrants it in the interests of justice.
47. The decision in M (A Minor) v. Minister for Foreign Affairs and Trade counters to some extent the lack of any authority for the grant of leave to cross-examine for the purpose of resolving costs in judicial review proceedings after mootness, albeit it is not a case in which an order granting leave to cross-examine for the purposes of costs was either sought or granted. Nonetheless, the lack of authority, consistent with a strong judicial reluctance to create additional costs in hearings about costs, now falls to be balanced against the logic of Simons J.’s reasoning in M (A Minor) v Minister for Foreign Affairs and Trade in accepting that credibility disputes can arise on costs applications.
48. While Simons J. treated cross-examination as exceptional observing (at para. 18): “judicial review proceedings which become moot should not, in principle and where avoidable, give rise to incidental disputation which is more costly than the underlying proceedings”, he nonetheless considered it a legitimate procedural option in some, presumably rare, circumstances. 12
49. It bears note, however, that Simons J. made his observations in relation to the procedural option of cross-examination in circumstances where the decision-maker in M (A Minor) v. Minister for Foreign Affairs and Trade had been criticised by Simons J. for the limited information in her affidavit and a failure on her part to acknowledge her awareness of the proceedings, even though this was clearly an issue which was being agitated on behalf of the Applicant. This lack of transparency on the part of the decision-maker is important context for the observations expressed by Simons J. in his judgment.
50. On the authority of Simons J. in M (A Minor) v. Minister for Foreign Affairs and Trade and there being no rule against the grant of leave to cross-examine in respect of consequential matters such as costs where it is determined that this is necessary in the interests of justice on the facts and circumstances of a given case, it is appropriate to now consider whether the circumstances of this case are exceptional such as to warrant the grant of an order giving leave to cross-examine for the purposes of a costs adjudication.
51. It is true that in this case some factual basis for questioning the credibility of the Respondent’s position that the application was determined in ordinary course and in chronological order, not in consequence of these proceedings, is laid arising from the fact that information published by the Respondent on its website contemporaneously with the decision, if correct, suggests that the application was processed as much as a year earlier than predicted by the Respondent in publishing general processing times. The Applicants also rely on the timing of the communication of the decision on the eve of the call-over date, days before the assigned hearing date as stretching coincidence to breaking point.
52. Nonetheless, while the Applicants assert implausibility with reference to publicly accessible information about processing times and draw inferences from the timing of the decision in this case, the Respondent’s servants or agents have sworn very detailed affidavits to explain both the publication of inconsistent information, which it is acknowledged occurred (and therefore not a disputed fact), and the coincidence in processing time. The explanations advanced are supported by exhibited documentation and do not depend on bare averments. This is clearly not a case like M (A Minor) v. Minister for Foreign Affairs and Trade where the Respondent’s deponents might be 13 criticised for failing to address relevant matters on affidavit. The care taken to demonstrate on affidavit that the application was determined at the same time as other appeals lodged at the same time in which judicial review proceedings had not been taken and also to establish in specific detail increases in staffing levels during the relevant period puts this case in quite a different category to M (A Minor) v. Minister for Foreign Affairs and Trade.
53. While I accept therefore that some basis has been identified on behalf of the Applicants for questioning the plausibility of the Respondent’s contentions by way of crossexamination namely the contradictory information on the website and the coincidence in timing of the decision, I am not persuaded that when the only outstanding issue is one of costs that an adequate basis is demonstrated for a discretionary order giving leave to cross examine as to costs in this case.
54. In addition to identifying a basis for asserting unreliability in the evidence which it is sought to challenge by way of cross-examination, when seeking leave to cross-examine in judicial review proceedings an applicant must also demonstrate that cross-examination is necessary for the administration of justice and refusal would result in procedural unfairness.
55. The jurisprudence on cross-examination links the grant of leave to cross-examine to situations where a material dispute of fact goes to the lawfulness of the decision under challenge and the court cannot decide entitlement to relief without resolving that dispute. The costs of these proceeding arise as a consequential and discretionary matter. In moot proceedings, an award in costs is not dependent on a finding of unlawfulness. It is also self-evident that costs do not engage constitutional justice to the same degree as an entitlement to substantive relief in proceedings.
56. Specifically, case law concerning delay in administrative decision-making evidences the fact that a finding on the issue of whether unreasonable delay is established is generally based on the evidence on affidavit relating to the length of delay, the complexity of the decision, the systems in place and the explanations for delay. Typically, therefore, when faced with disputes relevant to costs in moot proceedings which turn on questions such as whether the decision issued “because of” the 14 proceedings or whether the case overtaken by events, these questions are normally resolved by the court examining the chronology and assessing objective documents. Explanations may be tested against probability and consistency, without the necessity for cross-examination provided there is no unfairness arising from the way this is done.
57. It seems to me that in this case insofar as the Applicants contend for inconsistencies as between what the website said and what the Respondent was communicating in correspondence, there is no necessity for cross-examination to do so. It is not disputed that at times the website did not reflect current processing times, even though the Respondent had asserted that it did. In this case, there is no impediment to the Court assessing the reasonableness of bringing and maintaining proceedings in the light of the acknowledged evidence that the website was indicating longer processing times than the Respondent was giving in correspondence and on affidavit and balancing this fact with other relevant considerations. Other relevant considerations include that the Respondent always indicated that it aiming for a decision within twelve months of the lodging of the appeal and that proceedings were commenced just two months after the appeal was lodged at a time when the focus was on the failure to determine the prioritisation application, rather than actual accrued delay in the processing of the application.
58. In view of the discretionary nature of the power to grant leave to cross-examine, I am particularly mindful of the fact that if cross-examination were allowed, it would have the consequence of causing additional costs to be incurred and would inevitably prolong any hearing on the issue of costs and exhaust valuable and scarce court time, impacting on other court users whose cases remain alive and who require access to the court to determine their substantive rights and entitlements.
59. I am not persuaded that any issue arises in these proceedings which cannot be adequately resolved on the affidavits and documentary record. The matters relied upon by the Applicants are fully apparent from the chronology and the contemporaneous documentation. The court can assess those matters without recourse to oral evidence. It seems to me that cross-examination would add little of substance but would undoubtedly cause disproportionate additional expense, resulting in excessive use of court time, depriving others of access to the court in proceedings which are not moot. 15 In my view there is no reasonable proportionality between the relative importance or significance of the contested issue of costs from April, 2025 until July, 2025, when the Applicants received a decision and the costs associated with a hearing involving oral evidence for the purposes of costs only, giving rise to still further costs.
60. In circumstances where judicial review is an affidavit-based procedure and cross-examination is an exceptional measure, normally only permitted where it is necessary for the determination of the legality of the decision under challenge, I am not satisfied that I should exercise a discretion under Order 40 rule 1 in this case where the application is directed solely to the issue of costs and would, if granted, require the court to embark upon a trial of credibility in circumstances where no such trial is required to determine the legal issues in the proceedings and those issues are moot. CONCLUSION
61. For the reasons set out above, I have decided to refuse this application for leave to crossexamine. I will hear the parties in relation to any consequential matters. 16