Anonymized Summary of Judgment

Factual and Procedural Background

Judge O'Higgins delivered judgment on 12 May 2026 in three related judicial review proceedings brought by three suspended members of An Garda Síochána (hereafter "Applicant A", "Applicant B" and "Applicant C"). Each applicant was suspended in November 2020 on allegations concerning the "squaring" away of fixed charge penalty notices. The suspensions have been reviewed and extended every three months. The suspensions arose from material obtained in criminal investigations termed Operation Bath and Operation Modulus. Separate pleadings and affidavits were filed in each case; the judgment addresses common issues and focuses primarily on the affidavit material in Applicant A's proceedings. The applicants sought (i) conversion of the judicial review proceedings to plenary proceedings, (ii) orders permitting cross-examination of several respondent deponents, and (iii) alternatively, orders striking out parts of the respondents' affidavits. The applicants' motions were grounded on an affidavit sworn by Attorney Hughes. The court declined to take into account certain post‑affidavit developments in the underlying criminal matters because they were not put on affidavit or argued before the court.

Legal Issues Presented

1. Whether the court should exercise its discretion to convert these judicial review proceedings to plenary proceedings.
2. Whether liberty should be granted to cross-examine specified respondent deponents on affidavit pursuant to the applicable rules and case law.
3. Whether parts of the respondents' affidavits should be struck out or deemed inadmissible on grounds such as hearsay, opinion, or impermissible advocacy.

Arguments of the Parties

Applicants' Arguments

• There are material and numerous factual conflicts in the affidavits which cannot be justly resolved on paper and therefore cross-examination (or conversion to plenary) is necessary.
• The respondents' deponents assert facts and conclusions the applicants deny; cross-examination is needed to test credibility and reliability; applicants rely on RAS Medical Limited v. RCSI for the need to test contested affidavit evidence.
• The respondents' affidavits contain hearsay, opinion, legal argument and impermissible advocacy and therefore parts should be struck out as inadmissible.
• The applicants contend they have been denied fair procedures (lack of disclosure), suffered unfair delay, received insufficient reasons in suspension notices, and been treated unequally to others.

Respondents' Arguments

• The core issues are legal, not factual; cross-examination is a rarity in judicial review and has not been properly justified here.
• Many alleged factual disputes are not genuine or are disputes as to inferences from undisputed facts; Hegarty v. Commissioner of An Garda Síochána and other authorities support refusing cross-examination except in narrowly defined circumstances.
• The respondents argued against conversion to plenary proceedings and submitted that, if cross-examination were ordered at all, it should be limited to discrete matters and limited deponents (proposed: Detective Sergeant Madden and Chief Superintendent McNulty).
• The respondents disputed the applicability of certain authorities relied on by applicants (e.g., submitted DPP v. Galvin was not relevant to these facts).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
DPP v. Galvin [2020] IECA 319	Described in the respondents' submissions; noted as concerning a constitutional challenge to legislation and as distinguishable.	Court agreed the authority was not directly applicable to the present factual context.
Abdelaatti v. College of Anaesthesiologists of Ireland [2024] IEHC 341	Factors to consider when converting to plenary proceedings after opposition papers filed (material factual dispute, number/complexity of witnesses, need for document discovery).	Court considered these factors in assessing whether conversion was justified and found the applicants had not established sufficient basis to convert.
RAS Medical Limited v. RCSI [2019] 1 I.R. 63	Leading Supreme Court authority on when cross-examination should be granted to test credibility/reliability of affidavit evidence and the onus on the party asserting contested facts.	Court relied on its principles (need to allow deponents to answer criticisms of their evidence) as central to permitting limited cross-examination of certain deponents.
Hegarty v. Commissioner of An Garda Síochána [2021] IECA 328	Emphasises that cross-examination in judicial review is rare; permits it where a genuine dispute of fact exists and is necessary to decide the law issue.	Court treated Hegarty as an important authority for the orthodox position; but allowed limited cross-examination where necessary on the facts of these cases.
IBRC (in special liquidation) v. Moran [2013] IEHC 295	Authority addressing limits on cross-examination in judicial review proceedings.	Cited by respondents to support that cross-examination should be granted sparingly; considered in the court's overall balancing of discretion.
Dunnes Stores v. Dublin City Council [2016] IEHC 724	Authority referred to by respondents on cross-examination principles in judicial review contexts.	Relied on by respondents to argue against broad cross-examination; considered by court in its analysis.
Tracey v. Bowen [2005] 2 I.R. 528	Affidavits should place evidence before the court and should avoid emotive advocacy; argumentative material belongs in submissions.	Court found parts of respondent affidavits impermissibly argumentative and applied the rule in assessing admissibility and need for cross-examination.
Goode Concrete v. CRH Plc [2011] IEHC 310	Definition and treatment of "scandalous" allegations on affidavit and O.40 r.16 (striking out scandalous matter).	Court noted tension in authorities on striking out and used Goode Concrete in discussing limits of striking out versus excision of inadmissible material.
Director of Corporate Enforcement v. Bailey [2007] IEHC 365 (and [2011] IESC 24)	Court may excise hearsay or otherwise inadmissible material from affidavits; Supreme Court endorsed approach permitting excision to prevent injustice.	Court treated Bailey as supporting the possibility of excision but found striking out unnecessary here because hearsay issues had largely been addressed.
Bayview Hotel (Waterville) Limited [2022] IEHC 516	Commentary on the far-reaching implications of RAS Medical and the effect of not cross-examining deponents when onus lies on a party.	Court referenced Bayview to illustrate practical consequences of RAS Medical in weighing whether to allow cross-examination.
Director of Corporate Enforcement v. Seymour [2006] IEHC 369	Permitted broader cross-examination to test inferences/opinions even where primary facts were not disputed; suggested tendency to permit cross-examination where debatable.	Court drew analogy to Seymour in permitting limited cross-examination to test inferences and opinions in this case.
Irish Bank Resolution Corporation Ltd v. Quinn [2012] IEHC 510	Considered the scope of Seymour; Kelly J. rejected that Seymour had gone beyond previous authorities.	Cited in discussion of authorities on whether cross-examination should be permitted to explore inferences and opinions.

Court's Reasoning and Analysis

The court began by outlining the governing rules (Order 40 RSC, notably rules 8 and 16) and the relevant authorities, emphasising the tension between the orthodox rule that judicial review proceeds on affidavit and the Supreme Court's direction in RAS Medical that deponents should be given an opportunity to answer challenges to the credibility or reliability of their sworn evidence. The court analysed each relief sought.

On conversion to plenary proceedings the court found applicants had not set out a sufficiently detailed basis for conversion, noting the grounding affidavit gave only limited attention to this relief (para. 33). The court held conversion should be exercised sparingly and refused the conversion application.

On cross-examination the court applied the authorities (RAS Medical, Hegarty, Seymour and related cases) and examined each respondent affidavit in detail. The court identified that parts of Chief Superintendent Gunne's affidavits contained argumentative material, belief and conclusions drawn from inferences and opinion evidence; this made some exploration by way of cross-examination appropriate to test the basis of those inferences. The court distinguished between genuine material factual disputes (or disputes as to inferences central to disposition) and strained or artificial disputes that do not require oral testing.

Applying that analysis, the court granted liberty to cross-examine four of the named deponents on focused discrete issues (the deponent principally responsible for the conclusions and those with first-hand knowledge of disputed contemporaneous statements and seizures) but refused liberty to cross-examine one deponent where the court considered the asserted disputes were not material or were properly addressed by other deponents and submissions. The court emphasised cross-examination would be limited and supervised to avoid a roving inquiry.

On the striking-out application the court noted hearsay issues had largely been cured by supplementary first‑hand affidavits and that both sides' affidavits contained some impermissible advocacy. Given that cross-examination would clarify matters and that weight and admissibility are matters for the trial judge, the court refused the striking-out relief.

Holding and Implications

Holding:

• GRANTED: Liberty to cross-examine the following respondent deponents on focused discrete issues: Deponent A (Chief Superintendent), Deponent C (Superintendent), Deponent D (Detective Sergeant), and Deponent E (Chief Superintendent).
• REFUSED: Liberty to cross-examine Deponent B (Detective Inspector Mark Watters).
• REFUSED: The application to strike out parts or all of the affidavits of Deponent A and Deponent B pursuant to Order 40, rule 16 RSC.
• REFUSED: The application to convert the judicial review proceedings to plenary proceedings pursuant to Order 84, rule 27(5) and/or (7) RSC.

Implications: The direct effect is that limited, supervised cross-examination of specified respondent deponents will proceed at the substantive hearing; the applicants' broader requests to convert to plenary proceedings and to excise large parts of respondent affidavits were denied. The trial judge retains control over scope and weight of evidence. The court did not purport to establish a new legal precedent beyond applying and reconciling existing authorities.

Appearances (Anonymized)

For the applicants: Attorney Harty and Attorney Kane instructed by Attorney Hughes' firm.

For the respondents: Attorney Power and Attorney Reilly instructed by the Chief State Solicitor's Office.

Signed: Judge O'Higgins