In the recent High Court case of Irish Skydiving Club CLG v Irish Aviation Authority DAC [2025] IEHC 77, the Court granted leave for witnesses to be cross examined on their affidavit evidence.
The proceedings were taken by the Applicant, Irish Skydiving Club CLG, which had sought a number of reliefs by way of judicial review against the Respondent, the Irish Aviation Authority, arising from aircraft inspections carried out by Authority, and the consequent decisions made as a result of these inspections.
Generally speaking, judicial review proceedings will be heard on affidavit without the need for an oral hearing and witnesses are not required to be cross examined on their evidence. This is in circumstances where the argument between the parties will usually be a legal one and there will be no controversy in relation to factual issues. However, where there is a conflict of evidence between the parties, the Court may order the attendance of persons to be cross examined on their affidavits and may also order that the proceedings are converted to a full plenary hearing.
In Irish Skydiving, the Court, in granting leave for the cross examination of the witnesses, acknowledged that where there is a factual disagreement between the parties, affidavit evidence gives rise to "considerable difficulties". The Court added that whilst the cross examination of witnesses in judicial review proceedings was not a frequent occurrence, this was "not to diminish the appropriateness of such course of action in certain instances". The Court advised that in deciding whether to grant leave to cross examine, it would consider: i) what is convenient for the determination of the proceedings and ii) what is just, expeditious and likely to minimise the costs of those proceedings. Ultimately the Court determined that the level of factual conflict between the parties in Irish Skydiving supported the "appropriateness and necessity of cross-examination to properly and fully resolve such issues of factual dispute."
Irish Skydiving serves as a timely reminder to parties to judicial review proceedings that the preparation of evidence on affidavit is not always the end of the matter, and that cross examination is always a possibility, particularly in proceedings involving a factual dispute between the parties.
To see the full Irish Skydiving decision, click here.
