Cross-Examination in Moot Judicial Review: Refusal Where Sought Solely to Litigate Costs

Court: High Court of Ireland  |  Judge: Ms. Justice Siobhán Phelan  |  Citation: [2026] IEHC 272  |  Date: 30 April 2026

1. Introduction

The applicants were (i) a minor child, J.F.M., resident outside the State, and (ii) the child’s mother, P.S.T., resident and working in Ireland on a General Employment Permit. The proceedings arose from the processing of a “join family” Long Stay D visa application and, in particular, the timing of the appeal decision and repeated refusals to prioritise the appeal.

Judicial review was initiated in July 2024, shortly after the appeal was lodged, alleging unreasonable delay and seeking mandamus to compel a decision (and/or a prioritisation decision). Over time, the prioritisation refusal was withdrawn and reissued; ultimately, the appeal decision issued on 14 July 2025, the day before the listed judicial review hearing, rendering the substantive proceedings moot. The live controversy became costs—especially costs incurred from 17 April 2025 onward.

The applicants then sought leave to cross-examine the respondent’s deponent (a Department of Justice official) at the costs hearing, arguing that disputed facts (including the reliability of published processing times and whether the appeal decision truly issued “in the ordinary course”) required oral testing.

2. Summary of the Judgment

• The High Court refused leave to cross-examine under Order 40 rule 1 RSC.
• The Court accepted that cross-examination is rare in judicial review and ordinarily confined to situations where resolving a material factual dispute is necessary to decide the legality of the challenged decision.
• Although the Court acknowledged that, in principle, factual disputes can arise on costs in moot judicial review (drawing by implication on M (A Minor) v. Minister for Foreign Affairs and Trade), it held that this case did not warrant the “exceptional” step of cross-examination.
• The matters relied on by the applicants (website processing times, the coincidence of timing, and the department’s explanations about retrospective/inaccurate updates and staffing changes) could be assessed fairly on affidavit evidence and contemporaneous documents.
• Proportionality and the efficient use of scarce court time strongly favoured determining costs “on the papers” rather than embarking on an oral inquiry that would generate further costs and delay.

3. Analysis

3.1 Precedents Cited and Their Influence

(a) Ras Medical v. Royal College of Surgeons in Ireland [2019] 1 I.R. 63; [2019] IESC 4 — the governing test

This was treated as the authoritative modern statement on when cross-examination may be ordered on affidavit evidence. The Court extracted two key propositions:

• Credibility/reliability challenges: if a party asks the court to reject sworn affidavit evidence on a material point, it must generally seek cross-examination to put the challenge to the deponent (the Court quoted Clarke J. to this effect).
• Material factual conflict: cross-examination may be permitted where a genuine, clear conflict of evidence (affidavit/documentary) is material to the final determination and cannot fairly be resolved on affidavit.

Ms. Justice Phelan accepted this framework but emphasised that the materiality requirement must be assessed in context: here, the only remaining issue was costs, not legality or substantive relief.

(b) Hegarty v. Commissioner of An Garda Siochana [2021] IECA 328 and CSNA Company Limited by Guarantee v. Minister for Health, Ireland and the Attorney General [2025] IEHC 594 — why cross-examination is unusual in judicial review

These authorities supported the orthodox proposition that judicial review is primarily concerned with legality and process and is typically determined on affidavit and legal submissions; cross-examination is generally confined to cases where the legal outcome depends on resolving factual disputes.

(c) In the Matter of Anvil Real Estate Limited [2025] IEHC 630 — “exceptional” cases and sensible limits

The Court treated this as illustrating a situation where credibility conflicts were so central that refusing cross-examination risked injustice. Ms. Justice Phelan contrasted that type of case with the present: a costs-only dispute in moot judicial review, where the Court considered the issues capable of resolution on documents and affidavit evidence without oral testing.

(d) Matta v. Minister for Justice [2016] IESC 45 and Hughes v. Revenue Commissioners [2021] IECA 5; [2023] 3 IR 393 — costs in moot judicial review

These cases supplied the broader costs approach for moot proceedings: costs often turn on whether the proceedings produced, or materially contributed to, the practical relief (for example, prompting a decision that was allegedly delayed). Importantly for this ruling, the Court noted that such costs determinations are typically made summarily on affidavit, not via oral fact-finding.

(e) M (A Minor) v. Minister for Foreign Affairs and Trade [2025] IEHC 581 — the closest analogue on costs and credibility

This was pivotal because it addressed, albeit indirectly, the possibility of credibility disputes in costs applications after mootness. In M (A Minor), Simons J. proceeded on affidavit evidence because the applicant had not sought cross-examination (or discovery), and he cautioned against “incidental disputation” in moot cases becoming more expensive than the underlying proceedings.

Ms. Justice Phelan read M (A Minor) as implying that cross-examination may be available in principle on a costs dispute in a moot judicial review, but only in rare circumstances and mindful of proportionality. The Court also highlighted contextual differences: unlike the criticised affidavit in M (A Minor), the respondent here had put forward detailed affidavit evidence, documentary support, and anonymised comparator decision records.

3.2 Legal Reasoning

(a) The procedural posture: mootness and a costs-only inquiry

The Court anchored its reasoning in the fact that the judicial review had become moot once the appeal decision issued. The application to cross-examine was therefore not directed to establishing unlawfulness or entitlement to mandamus, but to shaping the costs consequences (notably, whether the decision issued “in the ordinary course” or was influenced by the impending hearing).

(b) The “ordinary course” issue and why it matters for costs

The Court accepted that, in this category of moot mandamus/delay cases, costs frequently turn on causation in a practical sense:

• If proceedings prompt or expedite a decision, the applicant may argue they obtained a benefit attributable to litigation and should recover costs.
• If the decision issued unprompted in the ordinary course, that rationale weakens, potentially shifting costs consequences (or supporting a split/limited costs order).

(c) Was there a “clear, genuine and material” factual dispute requiring oral testing?

The applicants pointed to (i) website processing times suggesting much longer delays than experienced; (ii) later evidence that the website could be retrospectively corrected and lag behind actual processing; and (iii) the coincidence of the decision issuing on the eve of the scheduled hearing. The Court accepted these matters provided a basis to question plausibility.

However, the Court held that cross-examination was not necessary for the fair determination of costs because:

• It was not disputed that the website was inaccurately updated at times; that point was acknowledged and explained on affidavit.
• The respondent supplied detailed explanations (including staffing increases from October 2024 and comparator records of other contemporaneous decisions) rather than relying on “bare averments”.
• The costs question could be assessed by examining the chronology and objective documents, and by evaluating consistency and probability on the papers.

(d) Proportionality and court resources as decisive constraints

A central element of the ruling is a pragmatic proportionality assessment: permitting cross-examination would increase expense, prolong the costs dispute, and consume scarce court time—despite the substantive case being moot and the contested period being relatively confined (April to July 2025). The Court found “no reasonable proportionality” between the significance of the remaining dispute (costs) and the burden of an oral credibility inquiry.

3.3 Impact

• Reinforcement of “costs on the papers” in moot judicial review: The ruling signals that Irish courts will be slow to allow the costs tail to wag the mootness dog, especially where documentary and affidavit material permits a fair determination.
• High threshold for cross-examination on costs: While not declaring it impossible, the decision indicates that a costs-only cross-examination application will require truly exceptional circumstances—likely including demonstrable inadequacy or non-transparency in affidavits, and an inability to fairly resolve the dispute on documents.
• Website processing times as evidence: The Court treated public processing-time information as potentially relevant to litigation choices and costs arguments, but also accepted that such information may lag or be corrected; future litigants relying on published timelines may need to anticipate rebuttal by operational evidence.
• Administrative law litigation strategy: Applicants in delay cases may still argue that proximity of a hearing prompted a decision, but this judgment suggests that, absent compelling gaps or contradictions requiring oral evidence, courts may determine that issue inferentially from the chronology and affidavits.

4. Complex Concepts Simplified

• Judicial review: A procedure to challenge the legality of public decision-making (how a decision was made), usually decided on affidavit evidence rather than oral testimony.
• Moot proceedings: A case becomes moot when the main relief sought is no longer needed (here, once the visa appeal decision issued). The court may still have to decide costs.
• Mandamus: A court order compelling a public body to perform a legal duty (often used to address alleged unlawful delay in making a decision).
• Certiorari: A court order quashing a decision for legal error (here, originally used to challenge a refusal to prioritise).
• Order 40 rule 1 RSC: The procedural rule enabling the court, in appropriate cases, to order that a deponent attend for cross-examination on their affidavit.
• Cross-examination: Oral questioning of a witness in court to test credibility and reliability. In judicial review it is exceptional because the process is designed to be paper-based.
• Costs in moot judicial review: Courts often ask whether the proceedings materially caused the outcome (e.g., a delayed decision issuing). If yes, applicants may recover costs; if not, costs may be refused or limited.
• Proportionality (in procedure): Whether a procedural step (like cross-examination) is justified given what is at stake, the likely utility of the step, the expense, and the use of court resources.

5. Conclusion

[2026] IEHC 272 underscores that cross-examination remains an exceptional feature of Irish judicial review. Ms. Justice Phelan accepted that credibility disputes can, in principle, arise on costs in moot judicial review, but held that—where the dispute can be fairly resolved through affidavit evidence, documentary material, and chronology—the court will not permit a costs-only cross-examination that risks converting a proportional, paper-based costs adjudication into a time-consuming credibility trial. The decision is likely to be cited as a strong caution against escalating mootness costs disputes into oral evidential hearings absent truly exceptional necessity.