REDACTED FOR PUBLICATION APPROVED [2026] IEHC 284 RECORD NO.: 2022 135M THE HIGH COURT FAMILY LAW IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 173 OF THE CIVIL PARTNERSHIP AND CERTAIN RIGHTS AND OBLIGATIONS OF COHABITANTS ACT 2010 BETWEEN: S.T. Applicant AND W.X. Respondent Ex tempore Judgment of Ms. Justice Nuala Jackson delivered on the 27th April 2026. 1. This is an application for a direction that the Respondent should not have access to overnight transcripts of evidence in the context of his cross examination. The first point to be made is that this application has been made somewhat late in the day as (
(2019)IESC 48 (‘O’Leary’), MacMenamin J. and Sweeney and the Limerick Private Hospital v. VHI [2021] IESC 58 (‘Sweeney’), O’Donnell J. as he then was, two judgments of the Supreme Court. In the former, in relation to overnight transcripts, MacMenamin J. states at paragraph 43: “I am unable to see that there could be any objection to the provision of overnight transcripts. It is by no means unknown for law cases to evolve during a hearing. Quite clearly, there were a number of different aspects to this 21-day case heard in the High Court. Altogether, there appellant called nine witnesses. It was not unreasonable for the respondent’s expert witnesses to be kept appraised of what these witnesses were saying and the manner in which the appellant’s case was developing as it proceeded, nor can I see any objection to the appellant’s expert witnesses attending court should they wish to do so. The fact that this may be a departure from previous practice some years ago does not indicate conflict of interest.”
- The O’Leary case was cited with approval in the subsequent Sweeney case. However, there are significant distinctions between the situations being considered in these two authorities and the present case. The Supreme Court was considering the issue in the context of expert evidence and in the context of the very particular duties which expert witnesses owe to the Court. MacMenamin J. had considered these principles as established in the English decision, National Justice Compania Naviera SA. v Prudential Assurance Company Limited [1993] 2 Lloyd's Rep 68 (‘The Ikarian Reefer’). The fundamental distinction between the evidence of expert witnesses and witnesses as to fact is that the former may give opinion evidence while the latter is limited in their evidence to factual matters. An expert witness may usefully wish to calibrate their opinion having regard to the factual evidence adduced at trial.
- I am considering this issue in the context of a witness as to fact.
- Mr. O’Riordan SC, for the Applicant, has pressed upon me that I must consider this case in the context of an overview of fairness. On one analysis, so doing would lead to my refusing the direction sought as the Applicant had the opportunity to access the overnight transcript during her testimony, including cross-examination, albeit that this was not availed of. The Respondent did not seek to curtail this.
- However, I believe that I must go back to first principles in examining this application. I previously ruled herein, based on my analysis of the authorities, that it is for each party in litigation to decide how they wish to present their case and the ordering of witnesses, absent exceptional circumstances. The Respondent in this case determined that he wished to call the less fundamental witnesses, who had defined issues of factual evidence to provide to the court, first, and that his own evidence, undoubtedly crucial and broad reaching, would be last. In essence, this might be called a jigsaw approach. A number of pieces of the puzzle are created followed by the evidence of the Respondent which joins all of these pieces together and which later evidence is corroborated by the former. I cannot see why the Respondent would not be entitled to see the transcripts of the evidence of these witnesses in preparation for his own evidence in circumstances in which both parties and their solicitors were present in court for this testimony and were freely at liberty to take notes concerning what was said which notes they could freely consult in preparation for and during their own testimony and, indeed, which evidence there would be no impediment or restriction upon them discussing with their lawyers in advance of giving evidence themselves, absent coaching.
- In addition, I consider that as regards access to transcripts of such prior evidence, this application is simply too late in time. Mr Casey has had these transcripts and undoubtedly has considered them. No application was made to restrict him from so doing.
- However, a separate and important issue does, in my view, arise in relation to his access to the overnight transcripts of his own evidence as his examination in chief and cross examination progress. As the Respondent has completed his evidence in chief and is a number of days into cross-examination, an issue of tardiness does arise. However, Mr. O’Riordan SC expresses the concern that the Respondent may have reviewed and may review his evidence in both of these contexts after the event in preparation for his continued cross-examination, indeed, that he may use his perusal of the transcript to identify issues which he wishes to revise or re-position in the context of ongoing testimony or to dovetail with previous witnesses as to fact which he has called. Arguably, this is a matter of memory. A witness with a better memory will have this opportunity in any event. Mr. O’Riordan presses me that memory is distinguishable from a written transcript which might perhaps be described as the perfect memory or aide to such perfection.
- While I accept that the R v Momodou (Henry); R v Limani (Beher) [2005] EWCA Crim 177/ 2005 WL 62320, is not entirely on point (dealing with coaching and pre-trial preparations of witnesses), the dictum of Judge LJ at para 61 is instructive in relation to the potential wrong which is under consideration: “The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal discussions. The rule reduces indeed hopefully avoid any possibility, that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids any unfounded perception that he may have done so. These risks are inherent in witness training. Even if the training take place one-to-one with someone completely remote from the facts of the case itself, the witness may come, even unconsciously, to appreciate which aspects of his evidence are perhaps not quite consistent with what others are saying, or indeed not quite what is being required of him. An honest witness may alter the emphasis of his evidence to accommodate what he thinks may be a different, more accurate, or simply better remembered perception of events. A dishonest witness will rapidly calculate how his testimony may be “improved”. These dangers are present in one-to-one training.”
- In the present instance, there is no risk of influence from anyone else. The Respondent’s access, at this juncture, would be only to his own testimony.
- The issue is considered by McGrath on Evidence (3rd Edition, 2020). Mr O’Riordan SC referred me to most helpful paragraphs in this text. The fundamental importance of crossexamination in the trial process is such that it is considered a constitutionally guaranteed right (State (Healy) v. Donoghue [1076] IR 325 at 335; McGrath: paragraphs 3-95 and 3-96).
- The issue of memory refreshment is also considered in this comprehensive text. The learned authors state at paragraphs 3-188 to 3-191: “Refreshing Memory Out of Court 3-188 It is common practice, in both criminal and civil proceedings, for witnesses to look at and refresh their memories from previous statements made by them or other documents before going into the witness box. This is considered unobjectionable477 even if the documents do not satisfy the requirement of contemporaneity applicable to documents used to refresh memory in court.478 In Lau Pak Ngam v R.,479 the Supreme Court of Hong Kong dismissed the contention that it was improper for witnesses to refresh their memory from their witness statements prior to trial taking the view that: “testimony in the witness box becomes not less, but more, a test of memory rather than of truthfulness if witnesses are deprived of the opportunity, normally utilised by prudent men, of checking their recollection beforehand by reference to statements or notes made at a time closer to the events in question.”480 3-189 The Court also expressed the opinion that “refusal of access to statements would tend to create real difficulties for honest witnesses but is likely to do little to hamper the dishonest witness”.481 That approach was endorsed by the English Court of Appeal in R. v Richardson482 where the view was taken that a general rule to the effect that witnesses could not refresh their memory before giving evidence would be unenforceable and, further, “would militate very greatly against the interests of justice”.483 3-190 However, it is important that the facility of allowing a witness to refresh his or her memory before trial is not used as an opportunity to coach a witness.484 Furthermore, if there are a number of witnesses, it is important to ensure that they are not afforded an opportunity to collude or synchronise their evidence. The statement of one witness should not, therefore, be read to another485 or an opportunity be given to witnesses to compare statements.486 3-191 It is also undesirable that a witness attempt to memorise his or her statement because, as observed by the Court of Criminal Appeal in People (DPP) v Donnelly487: “There is clearly a danger that if a witness seeks to learn the contents of his or her statement by heart then when such witness gives evidence in court it may not be about what occurred but about what such witness had said in the statement had occurred. This would clearly be wrong.”488
- The issue of memory refreshment by a witness to fact from overnight transcripts is not directly addressed but it seems to me that the basis for objection would be to avoid coaching. I consider it also important to recall the words of Hogan CJ in the Supreme Court of Hong Kong, cited in McGrath, that care must be taken not to create real difficulties for the honest witness by asserting principles likely to do little to hamper the dishonest witness. The potential injury asserted here is that a witness while under crossexamination might review their evidence overnight and seek to moderate or recalibrate it the following day. There is not a suggestion that it would be used for coaching which would, of course, be improper. Of course, the transcript might be a useful tool for coaching a witness or assisting the dishonest witness. But this cannot be assumed. It likewise may assist clarity and precision.
- However, a potential for an improper use cannot dictate the general rule. The improper usage has its own consequence and is not to be assumed.
- It seems to me that, using his own memory, a witness might well review his evidence and seek to moderate or revise same. This would occur without complaint (of course, there might be cross-examination on the revision). Arguably, this might be said to create an unfair advantage for the witness with a good memory but the law ought not and does not penalise such an attribute. Reviewing the transcript does not appear to me to create any different issue. If this leads to a nuancing of evidence on resumption of crossexamination or indeed a volte face, this will undoubtedly be robustly addressed by the cross-examiner.
- Mindful that this application has been made late in the litigation and that different considerations might arise if early application was sought, I will refuse this application. I will reserve the issue of costs relating to it to the conclusion of the hearing.