Cross-examination in judicial review may be permitted where “lawyered” affidavits advance disputed inferences and conclusions central to the defence, but must remain tightly controlled

1) Introduction

In Griffin v Commissioner of An Garda Siochana & Ors (Approved) [2026] IEHC 330, Mr Justice Micheál O’Higgins determined three procedurally-linked motions arising in separate judicial review proceedings brought by three members of An Garda Síochána (the “applicants”), each suspended since November 2020. The suspensions were imposed and then renewed on a three-monthly basis following allegations connected to the “squaring away” of fixed charge penalty notices, arising from criminal investigations (“Operation Bath” and “Operation Modulus”).

The merits of the suspensions were not decided. Instead, the court addressed how the cases should be tried in judicial review: whether to (i) convert the proceedings to plenary actions; (ii) permit cross-examination of the respondents’ deponents; and/or (iii) strike out parts of respondents’ affidavits as inadmissible.

The applicants’ substantive judicial review grounds (summarised by the court) included alleged failures of fair procedures (not providing materials relied on for extensions), delay rendering continued suspension unfair, inadequate reasons, and unequal treatment compared with other members.

2) Summary of the judgment

  • Conversion to plenary proceedings refused (Order 84, rule 27(5)/(7) RSC): the evidential basis advanced was thin, and the court regarded conversion as a more exceptional step than ordering cross-examination.
  • Cross-examination permitted in part (Order 40, rule 1 RSC): the court allowed limited, issue-specific cross-examination of:
    • Chief Superintendent (C/S) Gunne;
    • Superintendent (Supt) Kennedy;
    • Detective Sergeant (D/S) Madden; and
    • Chief Superintendent (C/S) McNulty.
    Liberty to cross-examine Detective Inspector (D/I) Watters was refused.
  • Strike-out/excision refused (Order 40, rule 16 RSC / inherent jurisdiction): although the court accepted criticisms of hearsay/argumentative content, it considered the hearsay issue largely “cured” by later first-hand affidavits and saw little utility in piecemeal excision where cross-examination would clarify matters and the trial judge could weigh admissibility and weight.

3) Analysis

3.1 Precedents cited and how they shaped the outcome

(a) The affidavit rules and the anti-advocacy principle: Tracey v. Bowen and RAS Medical Limited v. RCSI

The court anchored its analysis in Order 40 RSC, especially: rule 8 (affidavits confined to facts within knowledge; hearsay generally impermissible outside interlocutory contexts; argumentative matter disallowed), and rule 16 (striking out “scandalous” matter).

The judgment reiterated Clarke J.’s guidance in Tracey v. Bowen [2005] 2 I.R. 528: affidavits are for evidence, not “flamboyant” advocacy; written submissions are the proper vehicle for argument. O’Higgins J. found that parts of the respondents’ affidavits (and, candidly, parts of the applicants’ affidavits) strayed into argument and advocacy.

The decision’s centre of gravity is the Supreme Court’s reasoning in RAS Medical Limited v. RCSI [2019] 1 I.R. 63. O’Higgins J. treated RAS Medical as doing two important things:

  • It underscores procedural fairness in fact-finding on affidavit: if a party wishes to contend that sworn evidence lacks credibility or reliability on a material issue, that party should seek procedural measures (typically cross-examination) so the deponent can answer the challenge.
  • It condemns the practice of using affidavits as quasi-submissions: “argumentative material” gains no special status by being sworn.

The applicants relied on RAS Medical to argue that, because the onus of proof in judicial review rests on them, they risk losing on disputed factual questions unless they can test the respondents’ accounts. The court accepted that this “onus-of-proof trap” is a real post-RAS Medical dynamic which can create unfairness if rigidly applied in the face of genuinely contested, outcome-relevant matters.

(b) Orthodoxy and restraint: Hegarty, IBRC (in special liquidation) v. Moran, and Dunnes Stores

The respondents’ principal authority was Hegarty v. Commissioner of An Garda Síochána [2021] IECA 328, emphasising that cross-examination in judicial review is rare because judicial review generally concerns legality rather than resolving contested facts. O’Higgins J. accepted that Hegarty states the “strong default rule” and warned against “roving” cross-examination or “fishing expeditions”.

The respondents also cited IBRC (in special liquidation) v. Moran [2013] IEHC 295 and Dunnes Stores v. Dublin City Council [2016] IEHC 724 as reinforcing that cross-examination is exceptional and confined to conflicts necessary to decide issues in the case.

Importantly, O’Higgins J. did not reject the Hegarty orthodoxy; rather, he treated the present case as an instance where limited cross-examination could be reconciled with that orthodoxy because: (i) certain disputed matters were material to pleaded grounds/defences (notably “acquiescence” and the rationale for ongoing suspension); and (ii) the respondents had advanced affidavit “conclusions” and “belief” evidence which the applicants should be permitted to probe, without converting judicial review into a plenary trial.

(c) When “mindset” and disputed inferences can justify cross-examination: Director of Corporate Enforcement v. Seymour and Irish Bank Resolution Corporation Ltd v. Quinn

O’Higgins J. found support “by analogy” in Director of Corporate Enforcement v. Seymour [2006] IEHC 369, where O’Donovan J. allowed cross-examination even though the respondent did not materially dispute primary facts but disputed inferences/opinions, observing that the court could be entitled to understand the “mindset of the challenger”.

The judgment also noted that in Irish Bank Resolution Corporation Ltd v. Quinn [2012] IEHC 510, Kelly J. rejected the contention that Seymour had improperly extended the law. O’Higgins J. nevertheless acknowledged that later cases often reassert the stricter “conflict of fact necessary to decide the case” test.

The practical synthesis in Griffin is that Seymour-type considerations (testing inferences and conclusion-driven affidavits) can justify cross-examination, but only where anchored to identified, material issues and subject to tight judicial control to avoid a plenary-style trawl.

(d) Striking out inadmissible affidavit material: Director of Corporate Enforcement v. Bailey versus Goode Concrete

On excision/strike-out, the court noted the doctrinal uncertainty identified in commentary (Delany and McGrath) about whether the court may strike out irrelevant/inadmissible material beyond “scandalous” content under Order 40, rule 16. It referenced:

  • Goode Concrete v. CRH Plc [2011] IEHC 310 (Cooke J.) on what is “scandalous”; and
  • Director of Corporate Enforcement v. Bailey [2007] IEHC 365, upheld in the Supreme Court ([2011] IESC 24), including Hardiman J.’s endorsement of machinery to excise clearly hearsay/inadmissible material.

Despite acknowledging these authorities, O’Higgins J. declined to engage in affidavit “surgery” on the facts of this case: hearsay concerns were largely overtaken by later first-hand affidavits, and the court considered that cross-examination plus the trial judge’s assessment of admissibility/weight was a more proportionate response than piecemeal strike-out.

(e) Conversion to plenary proceedings: Abdelaatti and DPP v. Galvin

The respondents relied on Abdelaatti v. College of Anaesthesiologists of Ireland [2024] IEHC 341 for a structured approach to conversion applications (especially post-opposition): the key question is whether there is a material factual dispute requiring oral evidence, with additional factors (witness numbers, technicality, subpoenas, discovery). O’Higgins J. accepted that conversion is not the default and should be justified by a demonstrated need.

The applicants invoked DPP v. Galvin [2020] IECA 319, but the court viewed it as context-specific (constitutional challenges) and not materially assisting on these facts.

(f) The post-RAS Medical burden-of-proof dynamic: Bayview Hotel (Waterville) Limited

The court cited Bayview Hotel (Waterville) Limited [2022] IEHC 516 (Butler J.) for the proposition that RAS Medical can have “far-reaching” implications: a party who bears the onus of proof may effectively be forced to accept unchallenged affidavit evidence even where the judge has reservations, if cross-examination is not pursued. This underpinned O’Higgins J.’s fairness-based willingness to allow targeted cross-examination where the respondents’ affidavits advanced contested conclusions and inferences.

3.2 Legal reasoning: why some cross-examination was allowed (and why some was refused)

(a) Conversion to plenary proceedings refused

The court reasoned that converting judicial review to plenary proceedings is a more radical procedural shift than ordering cross-examination within judicial review. An applicant ordinarily must show that cross-examination would be inadequate for the “just resolution” of the dispute.

On the evidence, the conversion request was weakly supported: only one paragraph of the grounding affidavit addressed it, and the hearing focus was cross-examination. The court therefore refused conversion, indicating that identified concerns could be addressed through more limited measures.

(b) Cross-examination allowed: C/S Gunne

The court identified multiple features in C/S Gunne’s affidavits that, cumulatively, made limited cross-examination appropriate:

  • Argumentative/advocacy content making it harder for a trial judge to separate evidence from submissions.
  • Significant “belief” and “opinion” content and conclusion-heavy assertions (e.g., claims about the necessity of suspension for public confidence and the absence of any suitable role).
  • Disputes about inferences drawn from primary facts (even if some primary facts were not disputed), in circumstances where the respondents relied on these inferences as key reasons the applicants should lose.
  • A fairness concern: it is “unattractive” for a party to advance contested conclusions on affidavit, resist cross-examination, and then rely on RAS Medical-style arguments that the court should not reject sworn evidence absent cross-examination.

The court therefore allowed cross-examination of C/S Gunne but emphasised it must not be “roving” or “unlimited” and remains under the trial judge’s supervision.

(c) Cross-examination refused: D/I Watters

By contrast, O’Higgins J. viewed the case for cross-examining D/I Watters as “strained and artificial”. Allegations that applicants’ pleadings contained inaccuracies were characterised as somewhat argumentative and not material conflicts requiring resolution to determine core issues. Any hearsay defects were largely cured by first-hand affidavits (notably D/S Madden), and the “complexity” characterisation could be addressed through other witnesses or submissions.

(d) Cross-examination allowed: Supt Kennedy (acquiescence and delay)

The respondents invoked alleged “acquiescence” by the applicants in deferring disciplinary processes pending criminal proceedings, as an answer to the applicants’ delay/unfairness challenge. Because this went to a pleaded, potentially dispositive defence on an important ground of challenge, the court held it was a “material issue” warranting cross-examination.

(e) Cross-examination allowed: D/S Madden and C/S McNulty (discrete “what was said” disputes)

The court permitted focused cross-examination on narrow factual disputes about what was allegedly said to an applicant during execution of a warrant and related interview “invitations”. It considered the questioning could be “tight” and would not justify an expanded inquiry.

(f) Strike-out/excision refused

The court’s approach was pragmatic rather than doctrinal: although it accepted there was argumentative material and earlier hearsay, the hearsay point had diminished in importance (first-hand affidavits now covered relevant matters), and sifting affidavits line-by-line was not considered helpful. Admissibility and weight were left for the trial judge, particularly given that cross-examination would clarify contested aspects.

3.3 Impact

(a) A practical post-RAS Medical pathway for limited oral evidence in judicial review

The decision is likely to be cited as a High Court example of how to reconcile: (i) Hegarty’s insistence that cross-examination in judicial review is exceptional, with (ii) RAS Medical’s insistence that a party cannot properly invite the court to reject sworn evidence without giving the deponent an opportunity to answer credibility/reliability challenges.

The court’s solution is limited, issue-specific cross-examination—a middle course that preserves judicial review’s affidavit-based character while preventing the process from becoming unfair where affidavit “conclusions” are doing heavy work.

(b) Increased scrutiny of “lawyered” affidavits in public law litigation

O’Higgins J.’s remarks about affidavits straying into advocacy (and Simons J.’s description in Abdelaatti of “lawyered documents”) reinforce an emerging theme: where affidavits are drafted as persuasive narratives with conclusions, belief evidence, and rhetorical framing, courts may be more willing to permit some cross-examination to “untangle” evidence from argument.

(c) Guardrails against “fishing expeditions” remain intact

The judgment should not be read as liberalising cross-examination generally. It repeatedly warns against “roving” cross-examination and emphasises that judicial review is not a plenary trial. The refusal to allow cross-examination of D/I Watters illustrates that courts will still reject applications founded on disputes viewed as peripheral, artificial, or resolvable through submissions and other evidence.

(d) Operational consequence for long-running suspension challenges

In challenges to prolonged suspensions (particularly where “public confidence” rationales are deployed), the decision signals that where a public authority relies on broad evaluative conclusions—especially those not obviously derived from first-hand knowledge— limited cross-examination may be permitted to probe the factual foundation and reasoning process, without converting the case to plenary proceedings.

4) Complex concepts simplified

Judicial review vs plenary proceedings

Judicial review typically tests the legality of a decision-making process (fair procedures, reasons, legality, rationality), usually on affidavit evidence. A plenary action is the ordinary “full trial” process with pleadings, discovery, oral evidence and broader fact-finding. Conversion from judicial review to plenary is therefore exceptional and must be justified.

Cross-examination on affidavit

Even in judicial review, the court can order that an affidavit witness attend to be cross-examined. This is usually allowed only where resolving a genuine dispute is necessary to decide a material issue, and it is typically confined to specific topics.

Hearsay and Order 40, rule 8 RSC

Hearsay is second-hand evidence (“X told me Y”). Order 40, rule 8 generally requires affidavits to be based on what the deponent can prove from personal knowledge (subject to limited exceptions). Hearsay is problematic because the true source cannot be tested in cross-examination.

“Scandalous” material and Order 40, rule 16 RSC

“Scandalous” affidavit material is not merely unflattering: it is gratuitous, vexatious, or abusive in relation to the issues, and can be struck out. There is a debated question (discussed via Bailey and Goode Concrete) about striking out non-scandalous but inadmissible material; this case avoided deciding that debate definitively.

“Acquiescence”

In this context, “acquiescence” meant alleged agreement or acceptance by the applicants to pause disciplinary steps pending criminal investigations. If proven, it could weaken a complaint that delay made continued suspension unfair.

“Roving cross-examination” / “fishing expedition”

These describe unfocused questioning not tethered to material issues, used to search for new points rather than test defined disputes. The court allowed cross-examination only with strict limits to prevent this.

5) Conclusion

[2026] IEHC 330 is a procedural decision with real consequences for how contested public law disputes are tried. While reaffirming that judicial review is ordinarily determined on affidavit and that cross-examination remains exceptional, the High Court held that limited cross-examination may be required where respondents’ affidavits contain conclusion-heavy, opinion-laden and partly argumentative material, and where the respondents rely on disputed inferences on material issues (including delay-related “acquiescence” and continuing-suspension rationales).

The decision’s practical contribution is its calibrated response to the post-RAS Medical Limited v. RCSI [2019] 1 I.R. 63 landscape: rather than forcing parties to accept contested affidavit conclusions, or converting judicial review into a plenary trial, the court endorsed a tightly supervised, non-roving form of cross-examination targeted at the issues that matter.