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Friends Of The Irish Environment Company Ltd By Guarantee and Ors v Environmental Protection Agency (Approved)
Factual and Procedural Background
This is an application by the Applicants for liberty to cross-examine Expert Witness B, who swore two affidavits on behalf of Company A. The Notice of Motion was filed on 18 June 2026 and heard on 22 June 2026. The main judicial review proceedings are listed for hearing on 1–2 July 2026. Opposition papers, including the first affidavit of Expert Witness B, were served on 2 April 2026; the Respondent's opposition papers were delivered on or about 27 April 2026. Expert Witness B's replying affidavit was sworn on 12 June 2026 and had been served in draft on 8 June 2026. The Applicants' solicitor wrote on 10 June 2026 setting out why cross-examination was said to be necessary.
Legal Issues Presented
- Whether the Applicants should be granted liberty to cross-examine Expert Witness B.
- Whether delay in bringing the application disentitles the Applicants to the relief sought.
- What legal test governs the grant of cross-examination in judicial review proceedings, in particular where there is expert evidence in conflict.
- Whether the specific seven issues identified by the Applicants disclose genuine disputes of expert opinion that must be resolved by cross-examination to determine material issues in the proceedings.
Arguments of the Parties
Applicants' Arguments
- The Applicants sought liberty to cross-examine Expert Witness B on seven identified issues (as set out in the affidavit of the Affiant) to resolve purported conflicts with Expert Witness A's evidence.
- The Applicants contended that cross-examination was necessary to resolve disputes in expert opinion relevant to human health risk and compliance with drinking water standards.
Company A's Arguments
- Company A submitted the application could and should have been brought earlier (opposition papers and first affidavit served in April 2026) and relied on that delay as a factor against granting relief.
- Company A argued that many of the contested matters were matters of legal interpretation or argument (for example, the legal status of WHO Guidelines and the precautionary principle) rather than genuine conflicts in expert opinion amenable to cross-examination.
- Company A noted that certain factual or sampling matters (e.g., evidence of Expert Witness D) were not disputed by the Applicants, and contended that some contested inferences amounted to supposition rather than a bona fide expert conflict.
The opinion does not contain a detailed account of other parties' separate legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| RAS Medical v. RCSI [2019] IESC 4; [2019] 1 I.R. 63; [2019] 2 I.L.R.M. 273 | Support for principle that, where affidavit evidence conflicts and the court must prefer one witness to another, fairness may require giving the other witness an opportunity to respond under cross-examination. | The court treated this authority as part of the body of law establishing when cross-examination is appropriate in judicial review and relied upon it in framing the test for when cross-examination should be permitted. |
| Hegarty v. Commissioner of An Garda Siochana [2021] IECA 328 | Cross-examination may be appropriate or essential where a genuine dispute of fact must be resolved before the legal question can be adjudicated; mere denial is insufficient; cross-examination cannot be used to elicit new grounds of challenge. | The court applied the test set out in this case: requiring a genuine dispute of fact and that resolution of that dispute be essential to determination of the legal issues before permitting cross-examination. |
| Salmon Watch Ireland CLG v. Aquaculture Licences Appeals Board [2023] IEHC 129 | Cross-examination is necessary only where facts, or in the case of experts, opinions, are genuinely in dispute and resolution of that dispute is material to determination of the proceedings. | The court adopted the passage cited (Holland J.) to support the proposition that it is unfair to prefer one affidavit over another without giving the other an opportunity to be heard under cross-examination when their evidence conflicts materially. |
| Ethical Farming Ireland v. Minister for Agriculture & Ors [2026] IEHC 42 | Summary of principles: cross-examination permissible for genuine conflicts of fact or challenges to credibility/reliability of factual averments that must be resolved to determine an issue; mere denials or challenges to interpretations/opinions do not suffice. | The court relied on this summary to emphasise that challenges to expert interpretations or legal evaluations do not automatically justify cross-examination and that the premise for cross-examination applications is the existence of conflicts of fact or credibility requiring resolution. |
Court's Reasoning and Analysis
Judge Farrell considered the procedural history and the submissions and authorities cited. On delay, the court accepted the application could have been brought sooner but held the delay did not automatically disentitle the Applicants. The court noted cross-examination would not necessarily derail the hearing as both Expert Witness A and Expert Witness B could be available on the listed hearing dates and that the court could allocate time if cross-examination proved necessary.
The court reviewed the governing authorities and distilled the applicable legal test: cross-examination in judicial review is rare and only appropriate where there is a genuine dispute of fact or expert opinion, and resolution of that dispute is essential to determining material legal issues. Mere denial, supposition, or disagreement with an expert opinion, or challenges that are primarily legal (for example, on the status of WHO Guidelines or the application of the precautionary principle), do not, without more, warrant cross-examination.
Applying that test to the seven issues the Applicants relied upon, the court analysed each issue against the affidavits and submissions. The court concluded that many contested points raised by the Applicants involved legal interpretation (e.g., status and role of WHO Guidelines, interpretation and application of the Drinking Water Directive and the precautionary principle) or amounted to supposition or argument rather than a genuine, material conflict in expert opinion. Where Expert Witness B gave a view about levels at which health effects are likely (e.g., a level exceeding 120μg/l), the Applicants did not point to evidential material showing a directly conflicting expert opinion of the kind that required cross-examination. The court therefore found the Applicants had not demonstrated that cross-examination was necessary to resolve any dispute of expert opinion essential to the determination of the proceedings.
The court recorded that, should its legal findings later indicate cross-examination is essential, it would revisit the question, but it emphasised this was not an invitation for a further application at that stage.
Holding and Implications
APPLICATION FOR CROSS-EXAMINATION DENIED
Holding: Judge Farrell concluded that the Applicants had not shown that cross-examination of Expert Witness B was necessary to resolve a genuine dispute of expert opinion that must be resolved to determine material issues in the proceedings, and therefore refused the application for liberty to cross-examine at this stage.
Implications: The immediate effect is that cross-examination will not take place unless the court, on further consideration of legal issues at the substantive hearing, determines it is essential and revisits the question. The opinion emphasises that many contested points are matters of legal interpretation or evaluation (for example, the precautionary principle and the legal status of WHO Guidelines) rather than disputes of expert fact or opinion that automatically justify cross-examination. The decision does not purport to establish a novel principle of law beyond applying and following existing authorities.
Signed: Judge Farrell
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