IEHC 42 — IEHC 42 — High Court

THE HIGH COURT

[2026] IEHC 42 Record Number 2022 497 JR

Between

ETHICAL FARMING IRELAND

Applicant

and

MINISTER FOR AGRICULTURE, IRELAND and THE ATTORNEY GENERAL Respondents and FEIRMEOIRÍ AONTUITHE NA HÉIREANN IONTAOBAITHE TEORANTA AS TRUSTEE OF THE IRISH FARMERS’ ASSOCIATION and FRANCIS GORMAN and CONOR O’LEARY

Notice Parties

JUDGMENT of Ms Justice Nessa Cahill delivered on 27 January 2026

INTRODUCTION

1. This judgment determines an application to cross-examine witnesses who swore affidavits on behalf of the first Respondent (“the Minister”) in these proceedings. The proceedings concern – in broad terms - a claim by the Applicant, a non-governmental organisation, that the Minister is failing to comply with the obligations imposed by Regulation 1/2005 on the protection of animals during transport and related operations (“the Regulation”) with regard to the live transport of unweaned calves from Ireland to other members states of the European Union.

2. The parties disagree as to the legal principles that govern this motion and as to how they should be applied. The Minister’s position is that it is necessary to demonstrate the existence of a genuine conflict of fact which needs to be resolved for the determination of a material issue in

1 the proceedings, for cross-examination to be permitted. The Applicant, on the other hand, contends that a conflict of fact does not need to be shown and that a conflict as to the interpretation of facts, or in relation to the conclusions or inferences to be drawn from facts, is sufficient to warrant cross-examination of a deponent. The parties also disagree as to whether the criteria for the grant of leave to cross-examine are met, whichever test is applied.

3. For the reasons given in this judgment, I believe that the principles which I should apply in exercising my discretion on this motion are that cross-examination is permissible when there is a genuine conflict of fact or when there is a challenge to the credibility or reliability of factual averments (based on documentation or contradictory affidavit evidence, for example), and that conflict or challenge needs to be resolved for the determination of an issue in the proceedings. Bare contradictions or denials of facts do not form a basis for cross-examination, nor do challenges to interpretations of facts, inferences, opinions or submissions made on affidavit. Applying these principles to this motion, it is my view that there is no basis to order the cross-examination on the affidavits sworn on behalf of the Minister in these proceedings.

4. In this judgment I will address the following topics:

- The Proceedings - This Motion - Applicable Legal Principles - Issues to be Determined in the Proceedings - Topics on which Cross-Examination Sought - Evidence of Mr Ricardo Gatica - Conclusions

THE PROCEEDINGS

5. By these proceedings, the Applicant seeks declarations that the Minister has failed to comply with his obligations under the Regulation. As the “competent authority” under the Regulation the Minister has certain powers, including the power to carry out checks on animal welfare.

6. The Applicant is a company limited by guarantee, which operates as a non-governmental organisation which promotes sustainable, ethical farming methods, and campaigns against animal cruelty, in factory farming and live export. The Applicant has for some time expressed concerns about the international trade that relates to the export of live and unweaned calves from Ireland to the European Continent, including in correspondence with the Minister.

2 7. The Statement of Grounds was filed and served following the grant of leave by the High Court on 18 July 2022 and was verified by the affidavit of Ms Caroline Rowley. The Minister’s Statement of Opposition was delivered on 8 March 2023, verified by the affidavit of Ms Lorna Meaney formerly the Head of Division, for Veterinary Export Certification and International Trade at the Department of Agriculture, now the Deputy Chief Veterinary Officer in that Department (“Ms Meaney’s First Affidavit”). A replying affidavit was sworn by Ms Rowley and further affidavits were then sworn on 16 January 2024 by both Ms Meaney (“Ms Meaney’s Second Affidavit”) and by Mr Ricardo Gatica (a veterinary inspector employed by the Minister to carry out the functions of an ‘official veterinarian’ under the Regulation). After that, further affidavits were sworn in the proceedings, including affidavits of discovery, and affidavits exhibiting expert reports of Dr David Pritchard (on behalf of the Minster) and Professor Donald Bloom (on behalf of the Applicant).

THIS MOTION

8. By this motion, the Applicant seeks an order under Order 40, Rule 1 of the Rules of the Superior Courts for leave to cross-examine Ms Meaney and Mr Gatica on their affidavits. The Applicant also applied for leave to cross-examine Dr Pritchard, who had provided three expert reports in support of the Minister. These reports dispute the findings and conclusions of Professor Broom, the expert relied upon by the Respondent. I was informed at the hearing of this application that the parties are seeking to ascertain whether a joint meeting of the experts may be a fruitful means of identifying and perhaps resolving the areas of agreement and disagreement as between them with a view to the possible production of a joint report. I do not therefore address the cross-examination of the expert witnesses in this judgment. This judgment is concerned solely with the factual evidence of the deponents who swore affidavits on behalf of the Minister, primarily Ms Meaney.

9. This motion is grounded on the affidavit of Leonora Mullett, a solicitor in the firm of Philip Lee Solicitors, the solicitors acting for the Applicant in these proceedings. Ms Mullett lists the affidavits that have been sworn on behalf of the Minister and the Applicant and swears that “it is clear that there are a number of conflicts of fact upon the affidavits in these proceedings that are necessary to resolve in order to determine the proceedings before the court.” The reference to “conflicts of fact” is notable – the stated premise of the motion is the existence of conflicts of fact. The replying affidavit sworn by Mr Quinn on behalf of the Minister does not address or contradict Ms Mullett’s affidavit and merely exhibits correspondence which is said to set out the Minister’s position.

3 10. The correspondence exchanged prior to this motion consists of a request by the Applicant that the Minister consent to the cross-examination sought and an explanation that “the majority of the averments contained in the affidavit of Ms Meaney are contested by the Applicant, Ms Rowley, in her own affidavit” (letter dated 23 April 2024).

11. It is said that Mr Gatica’s cross-examination is necessary owing to the fact that, in his inspection report of 9 April 2022, he stated “N” (meaning no) in response to a question about the water systems functioning. In his affidavit sworn on 16 January 2024 Mr Gatica confirmed that this was incorrect and was a typographical error.

12. By letters of 19 and 29 April 2024, the Minister asked for the precise conflicts of fact on which the application is based to be identified. Reference is made to several judgments, which are addressed later in this judgment: Somague Engenharia SA & Wills Bros Ltd v. Transport Infrastructure Ltd [2015] IEHC 723 (“Somague”); Irish Bank Resolution Corporation Ltd (in special liquidation) v Moran [2013] IEHC 295 (“IBRC v. Moran”); Director of Corporate Enforcement v Seymour [2006] IEHC 369 (“Seymour”); and Trafalgar Developments Limited v. Mazepin [2022] 1 IR 339 (“Trafalgar”).

13. By replying letter dated 1 May 2024, the Applicant’s solicitors disagree with the Minister’s interpretation of the relevant caselaw and then proceed to identify “in general terms” the conflicts of fact relied upon “and also the conflict regarding the construction and interpretation of facts that are present in this case.” Reliance is placed on Somague as to the relevance of such conflicts regarding construction and interpretation of facts.

14. By further letter dated 13 September 2024, the Applicant sets out a list of “conflicts of fact and opinion” that are said to be necessary to resolve in order to determine the proceedings. These asserted factual conflicts, which are alleged to arise from the affidavit of Ms Meaney, are addressed later in this judgment.

15. A letter in response was sent on behalf of the Minister on 21 October 2024. That advanced the legal position that cross-examination in judicial review proceedings is exceptional and that a genuine dispute of fact must arise. Reliance is placed on Hegarty v. An Garda Commissioner [2021] IECA 328 (“Hegarty”) and IBRC v. Moran (among other authorities). It is said that the Applicant’s application for cross-examination is akin to a fishing expedition in discovery and an abuse of process. By letter dated 6 November 2024, the Applicant sets out further information on the asserted conflicts of fact under each of the headings identified in the letter of 13 September 2024.

4 APPLICABLE LEGAL PRINCIPLES

16. Order 40, Rule 1 provides that, “Upon any petition, motion, or other application, evidence may be given by affidavit, but the Court may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit.”

17. The principles that apply to the exercise of the discretion to direct cross-examination in judicial review proceedings are addressed in two authoritative judgments, the judgment of the Court of Appeal in Hegarty and the judgment of the Supreme Court in RAS Medical Limited v. Royal College of Surgeons in Ireland [2019] 1 IR 63 (“RAS Medical”).

18. While several judgments that pre-date these cases were opened to me, RAS Medical has - quite accurately – been found to be “far-reaching” (see Re Bayview Hotel (Waterville) Ltd [2022] IEHC 516 at [51].) I consider it to be the necessary starting point for any assessment of cross- examination in judicial review proceedings.

19. RAS Medical arose from a challenge by way of judicial review to a decision of the Royal College of Surgeons of Ireland (“the RCSI”) not to grant accreditation for a continuing professional education surgical training event. One of the grounds of challenge was that the RCSI had applied a set of guidelines that were not properly in place or communicated before the impugned decision was taken. There was asserted to be a direct conflict between certain affidavit evidence sworn on behalf of the RCSI and documentation obtained by way of discovery. The Court of Appeal in RAS Medical ([2017] IECA 228) had found that the RCSI in fact made its decision based on the new guidelines, thereby rejecting the position of the RCSI. It granted the relief sought by theapplicant, quashing the decision of the RCSI. The Supreme Court (Clarke CJ delivering the judgment with which O'Donnell, MacMenamin, Dunne, and Finlay Geoghegan JJ. agreed) found that this amounted to the rejection of the factual evidence sworn on behalf of the RCSI, without it being put to the deponent in cross- examination that his evidence was contested. The decision of the Court of Appeal was overturned. While RAS Medical did not arise from an application to cross-examine a witness, the statements of the law on cross-examination in the judgment of the Supreme Court are of direct and immense importance to this application.

20. The key passages of the judgment of the Supreme Court are as follows:

“[88] Where a party wishes to assert that evidence tendered by an opponent lacks either credibility or reliability, then it is incumbent on that party to cross-examine the witness concerned and put to that witness the basis on which it is said that the witness's evidence should not be accepted at face value. It is an unfair procedure to suggest in

5 argument that a witness's evidence should not be regarded as credible on a particular basis without giving that witness the opportunity to deal with the criticism of the evidence concerned. A party which presents evidence which goes unchallenged is entitled to assume that the evidence concerned is not contested. However, there may, of course, be legitimate debate about whether the evidence, even if accepted so far as it goes, is sufficient or appropriate to establish the facts necessary to resolve the case in favour of the party tendering the evidence in question.…

[92] ... it is frankly not appropriate for parties to enter into controversy as to the facts contained either in affidavit evidence or in documents which are admitted before the court without successful challenge, without exploring the necessity for at least some oral evidence. If it is suggested that there are facts which are material to the final determination of the proceeding and in respect of which there is potentially conflicting evidence to be found in such affidavits or documentation, then it is incumbent on the party who bears the onus of proof in establishing the contested facts in its favour to use appropriate procedural measures to ensure that the potentially conflicting evidence is challenged. Where, for example, two individuals have given conflicting affidavit evidence and where it is considered that a resolution of the dispute between those witnesses is necessary to the proper disposition of the case, then there has to be cross- examination and the onus in that regard rests on the party on whom the onus of proof lay to establish the contested fact.

[93] A similar principle applies where it is suggested that there is documentary evidence, properly before the court, which might cast doubt on the reliability of sworn testimony. It is not permissible to invite a court to reject sworn testimony either on the basis that there is sworn testimony to the contrary or that the testimony might be said to be either lacking in credibility or unreliable (on the basis of, for example, a documentary record) without giving the witness concerned an opportunity, under cross-examination, to explain, if that be possible, any matters which might go to credibility or reliability.”

21. Clarke CJ also addressed the question of the proper scope and content of affidavits, placing some emphasis on the need for affidavits to be confined to evidence of fact, as opposed to containing argument or submissions:

“[95]…. The place to make argument is either in written submissions filed in the court or in oral argument before the judge. It is not the function of affidavits to be argumentative about the issues in the case including issues of fact. It is one thing to

6 swear a replying affidavit which gives a different account of events and points to what is said to be objective evidence which might suggest that the account being given should be regarded as credible and reliable in distinction to an account given by an opponent. It is another thing altogether to include in affidavits the sort of argumentative material which more properly forms the basis of submissions, whether written or oral.

[96] The comments which I have just made concerning evidence, or uncontested evidence, contained in affidavits or in documents exhibited in affidavits, need to be seen against that background. Those comments apply to evidence properly so-called and not to argumentative material which could not reasonably be regarded as forming part of the evidence in a case. It is important that parties should realise first that it is inappropriate to use affidavits as a form of quasi-legal or factual argument with a detailed analysis of the facts and arguments as to why the facts proposed on the side concerned should be accepted. Such material has no place in an affidavit, which should be confined to evidence. Second, it is important that parties realise that the inclusion of argumentative material in an affidavit does not give it any greater status than it would have had if it had been included, where it should have been, in submissions written or oral.”

22. Insofar as RAS Medical sought to rely on the affidavits sworn by its deponent, Clarke CJ rejected this:

“The fact that Dr. Salman sought, in his affidavit, to place a particular interpretation on the internal RCSI documentation does not amount to evidence for all of the reasons addressed earlier in this judgment. It is simply an argument which could just as easily, and it might be said more properly, have been made in submissions” (at [101]).

23. As there had been no application to cross-examine the deponent for the RCSI, the Supreme Court reversed the decision of the Court of Appeal and the relief sought by RAS Medical was refused.

24. Hegarty concerned a challenge to a decision by the Commissioner to suspend the applicant as a member of An Garda Siochana and a subsequent decision to dismiss him from that role pursuant to section 14 of the Garda Síochána Act 2005 (as amended). The applicant applied for the cross-examination of the Chief Superintendent who swore affidavits in the proceedings on behalf of the Commissioner. The primary ground for seeking cross-examination was to challenge the Commissioner’s pleaded case (as confirmed on affidavit by the Chief Superintendent) that the statutory dismissal process was independent of the disciplinary

7 process that had preceded it and that the necessary procedure had been followed. The applicant’s solicitor stated on affidavit that she did not have the means of knowledge to contest the facts advanced on behalf of the Commissioner, absent cross-examination. It was also asserted to be necessary to cross-examine the Chief Superintendent to assess her means of knowledge to swear the affidavits and whether the evidence given was in the nature of hearsay evidence. The position of the Commissioner as that there was no factual dispute, the issues in question being ones of law.

25. The High Court granted an order directing the attendance of that deponent for cross- examination, an order which was overturned by the Court of Appeal. Noonan J. (Faherty and Ní Raifeartaigh JJ. agreeing) noted that there was no factual dispute in respect of certain allegations made in the proceedings, such as that there was no inquiry carried out, and no communication to the applicant or opportunity to respond, before the communication of the decision to dismiss the applicant.

26. The legal principles as set out in Hegarty are clear. The judgment adopts as “an accurate statement of the law” and “a helpful summary of the legal position” the following paragraph from Delany & McGrath on Civil Procedure (4th ed, Roundhall 2018) at [21–104]:

“The general approach of the courts has been that leave to cross-examine will only be granted if there is a conflict of fact upon the affidavits that it is necessary to resolve in order to determine the proceedings or the application before the court. In order for the requisite conflict to arise, it will be necessary for the party seeking cross-examination to have filed an affidavit challenging the accuracy of the matters upon which cross- examination is sought. It follows that cross-examination will not be ordered so that the deponent can be cross-examined as to factual matters that are not addressed in his or her affidavit. Neither can cross-examination be used in an attempt to depose the deponent to obtain evidence for later use at trial.” (at [31]).

27. This identifies the “general approach” as being that cross-examination is only appropriate if there is a conflict of fact as between affidavits, which must be resolved for the determination of a material issue in the proceedings (meaning an issue that does need to be determined in the proceedings). Noonan J. also adopts as a correct statement of the law that of Kelly J. in IBRC v. Moran:

“15. It is incumbent upon an applicant for such an order [ for cross-examination] to demonstrate (1) the probable presence of some conflict on the affidavits relevant to the

8 issue to be determined and (2) that such issue cannot be justly decided in the absence of cross-examination.”

28. The Court of Appeal judgment then sets out the following important summary of the law on this topic:

“34 Cross-examination in applications for judicial review is relatively rare. This is because judicial review is concerned with issues of pure law arising in the process under challenge, rather than the resolution of factual disputes between the parties. It is for that reason that cross-examination is unusual in such cases, rather than because special rules apply to judicial review. As in any adversarial litigation, it is for the claimant to allege facts which are said to give rise to an entitlement to the remedy sought.

35 To the extent that the public body concerned may dispute the facts alleged by an applicant for judicial review, if the court cannot adjudicate on the question of law raised without first resolving the dispute of fact, then cross-examination may not only be appropriate but essential. There must however be a genuine dispute of fact arising. It is not sufficient for the applicant to merely swear that he or she does not accept a particular state of affairs without putting alternative facts before the court which the applicant says are the true facts.

36 Mere denial or non-acceptance of facts deposed to by a respondent cannot, without more, give rise to a right to cross-examine. Were that to be the position, there would be cross-examination in virtually every case. Even if there is a genuine dispute on the facts in the sense of opposing versions of events being advanced by the parties, cross- examination will in general only be permitted where the resolution of that conflict is essential to the determination of the legal issues that arise.”

29. Later, Noonan J. applied these principles, noting,

“An applicant for judicial review is not entitled to seek to cross-examine the decision maker with a view to eliciting facts which might then be relied upon as grounds for challenging the decision in issue. That would, in my view, subvert the judicial review process. Garda Hegarty has pleaded facts which are undisputed and which, he claims, of themselves invalidate the s. 14 process initiated by the Commissioner. There is thus, in my judgment, no extant factual controversy between the parties, the resolution of which is essential to enable the court to determine the application” (at [43]).

9 30. The Court ruled that the Commissioner’s position was either correct as a matter of law or it was not, but that the facts underlying the challenge were not in dispute and cross-examination was not warranted.

31. Some of the points that may be distilled from Hegarty and RAS Medical, and which are binding on me, are that:

a) If there is a conflict of fact as between affidavits on a factual issue that needs to be determined in the proceedings, then cross-examination on that evidence is permissible; b) If there is a challenge (based on conflicting documentary or affidavit evidence, for example) to the credibility or reliability of an affidavit on a factual point that needs to be determined in the proceedings, there can and should be cross-examination on that evidence; c) To the extent that an affidavit contains argument, submission, or interpretations of facts, that is not the intended or proper purpose of an affidavit and cannot be regarded as evidence properly so-called in respect of which cross-examination may be required; d) An affidavit should be filed challenging the accuracy or credibility of the impugned averments (whether on the basis of objective evidence or otherwise) for cross- examination to be permissible; e) Mere denials or non-acceptance of, or unsubstantiated challenges to, facts contained on affidavit are not generally sufficient to ground an application for cross-examination; f) Cross-examination cannot be used for the purpose of eliciting facts to ground or substantiate a judicial review challenge.

32. The Applicant relies heavily on the judgment of Baker J. in the High Court in Somague for the proposition that cross examination may be permitted to challenge the interpretation of facts or conclusions or opinions contained in affidavits, even if there is no true factual conflict. This reliance on Somague – and the context in which it was determined – need to be carefully considered.

33. To begin with the legal context, the cases that preceded – and were cited in – Somague – include Seymour; Irish Bank Resolution Corporation Ltd. v. Quinn [2012] 4 IR 381 (“IBRC v. Quinn”) and IBRC v. Moran. Each of these was referenced during the hearing before me.

10 34. In Seymour, O’Donovan J granted leave for cross-examination of the director/respondent in an application for a disqualification order under section 160 of the Companies Act 1990. The application was made on the basis of a report of an inspector under section 8 of that Act which found a want of commercial probity on the part of the Respondent. The report was to be treated as evidence of the inspector’s opinion pursuant to the 1990 Act. O’Donovan J. determined that, “if that opinion is challenged, notwithstanding that the facts upon which the opinion is based are not disputed, the court is entitled to know the mindset of the challenger and, in my view, the only way that that can be ascertained is by confronting the challenger under cross examination.” Leave was given for the cross-examination of the respondent.

35. As the Minister points out, when dealing with the substantive appeal in Seymour, the Supreme Court doubted whether it was correct or appropriate for the High Court to have considered evidence beyond the terms of the inspector’s report itself:

“[83] … although it is clear that the cross-examination of the appellant, including his responses to questions concerning the interviews with the Inspectors were factors in Murphy J.’s judgment, I am not satisfied it is correct in law, or appropriate, to revisit the content of the evidence adduced before the Inspectors, in the manner in which this was done in the High Court, and thereafter seek to make findings, or reach conclusions, on that material, which are not found in the Report of the Inspectors. The Report cannot be, or become, a simple backdrop permitting the court to embark on issues outside the ambit of the claim, or reach conclusions which the Inspectors did not, and might never, make in the same way, on the same evidence, or to the same effect … for such an approach also has the effect of undermining the findings and conclusions in the Report itself.”

36. In IBRC v. Quinn, Kelly J. noted the criticism by counsel that Seymour went beyond what the existing caselaw provided for. Kelly J. did not believe that was correct, emphasising the discretion of the court to order cross-examination in an appropriate case and noting that O’Donovan J. in Seymour “identified what the approach of the court ought to be on such an application”.

37. Subsequently, in IBRC v. Moran, Kelly J. heard an application under Order 40, Rule 1 for the cross-examination of a liquidator who was seeking security for costs. Having quoted the judgment in IBRC v. Quinn, Kelly J. held that, “It is incumbent upon an applicant for such an order to demonstrate (1) the probable presence of some conflict on the affidavits relevant to the issue to be determined and (2) that such issue cannot be justly decided in the absence of cross examination” (at [15]).

11 38. In that case, there were alleged to be conflicts of fact on affidavit, but Kelly J rejected the application to cross-examine on each of the grounds advanced, finding that they were not necessary for, or relevant to, the resolution of the issues to be determined on the security for costs motion and would not be of use to the court in determining those issues, or were related to questions of law rather than fact that could be determined absent cross-examination. Kelly J concluded the defendant “has not demonstrated any or any sufficient conflict on the affidavits on any issue relevant to the question of security for costs to warrant the cross examination of the liquidator” ([44]).

39. In Somague itself, the application was to cross-examine a Mr Corsi who was one of a three- member team who evaluated the unsuccessful tender of the applicant in a public procurement process for the design and construction of an extension of the Dublin City LUAS light railway. The issue which led to the application for cross-examination was, in broad summary, that Mr Corsi’s notes of his evaluation of the tenders were obtained by way of discovery and the applicant complained that they demonstrated a failure to properly understand or apply certain tender evaluation sub-criteria. Mr Corsi swore three affidavits affirming the affidavits of another deponent (not a member of the evaluation team) and confirming that the evaluation was in compliance with the tender criteria and documentation. The applicant wished to challenge these assertions. A related issue which appeared to emerge in the proceedings was the evidence that Mr Corsi’s evaluation was not directly counted in the ultimate marks awarded. The applicant’s case was that there was a dispute between the parties as to the meaning of the notes, the inference that could be drawn from them, and the role they played in the evaluation of tenders.

40. In the course of her judgment in that case, Baker J. referred to the judgment of O’Donovan J. in Seymour as authority for the propositions that

“.. there may be examined not merely facts taken in the narrow sense but also the construction, or interpretation, or conclusions that a person draws from those facts, and cross-examination may be permitted in those circumstances even if there is no real dispute as to those material facts…

Thus opinions and conclusions may be tested by cross-examination both as to their reliability or reasonableness as the case may be” (at [17]).

41. The Applicant relies heavily on these latter statements in Somague as authority that cross- examination on affidavit may now be directed to the interpretation or construction of facts or opinions or conclusions drawn from them, in the absence of a real dispute as to material facts.

12 I do not believe that is a correct statement of the current law on cross-examination for the following reasons.

42. First, and most significantly, Somague is a High Court judgment which was delivered in 2015. Since then, the law on cross-examination in substantive judicial review proceedings has been definitively addressed by the Supreme Court in RAS Medical and by the Court of Appeal in Hegarty. Those judgments are binding on me. If and to the extent that Somague is inconsistent with the principles set out in those cases, it is the latter I must apply. Adopting this approach, I must observe that I do not see how granting permission to cross-examine in the absence of a genuine conflict of fact or substantiated credibility challenge on a material issue, is consistent with the judgments in RAS Medical or Hegarty. Insofar as Somague is authority for the case advanced by the Applicant on that broad basis, I do not accept that it can now be applied to expand the scope of cross-examination beyond that contemplated by the Supreme Court in RAS Medical or the Court of Appeal in Hegarty.

43. A second and related point that arises from the case advanced by the Applicant is that the Supreme Court in RAS Medical was critical of the inclusion of argument or submissions in affidavits sworn by witnesses of fact (as distinct from expert reports). The affidavit evidence of such fact witnesses should be limited to facts. The contention by the Applicant, in reliance on Somague, that cross-examination should be permitted to challenge interpretations of facts or conclusions or opinions is at odds with this clear admonition by the Supreme Court as to the appropriate scope of affidavits and, by necessary extension, the appropriate scope of cross- examination on such affidavits. I do not see how an asserted right to cross-examine a factual witness on interpretations, conclusions or opinions can be reconciled with RAS Medical (regardless of the fact that RAS Medical was not a decision on an application to cross-examine).

44. Third, while the judgment in Somague does refer to cross-examination being permitted in the absence of a conflict of facts, the judgment also contains several statements of the law which recognise the necessity of a material conflict of fact. Baker J. set out the following passage from the judgment in Seymour, describing it as “good law” (at [16]):

"In my view, it is axiomatic that, when, in the course of applications to the court which are required to be heard and determined on affidavit, as is the situation in this case, it becomes apparent from the affidavits sworn in those proceedings that there are material conflicts of fact between the deponents of those affidavits, the court must, if requested to do so, consider whether or not to direct a plenary hearing of the proceedings or that one or more of the deponents should be cross examined on his or her affidavit. This is so because it is impossible for a judge to resolve a material conflict

13 of fact disclosed in affidavits. However, while it seems to me that, where it is debatable as to whether or not the cross examination of a deponent on his or her affidavit is either necessary or desirable, the court should tend towards permitting the cross examination, at the end of the day it is within the discretion of the court as to whether or not such a cross examination should be directed and that discretion should only be exercised in favour of such a cross examination if the court considers that it is necessary for the purpose of disposing of the issues which the court has to determine."

45. This passage hinges largely on the requirement of a material conflict of fact as between affidavits, which is consistent with Hegarty and RAS Medical (while recognising the breadth of the court’s discretion). Baker J then referred to IBRC v. Moran and noted, “Thus the test is twofold: there must be a conflict of evidence on affidavit and it must be necessary to resolve that conflict in order to determine the issue before the court” (at [19]). In another paragraph of the judgment in Somague, Baker J. notes the argument by the respondent that cross- examination should only be permitted when there is a conflict of facts which needs to be resolved for the determination of the issues before stating “I accept that he is correct in this” (at [23]). There is accordingly some lack of clarity as to whether Somague is necessarily authority for the breadth of the proposition advanced by the Applicant.

46. Fourth, in weighing the application to cross-examine, Baker J. did attach weight to the EU procurement context of the proceedings and the overarching imperative of transparency, concluding as follows:

“I consider that the principles of Community law and the requirements of the utmost transparency and fairness of process in procurement cases does mandate a higher degree of scrutiny by the court of the available evidence, and does require for the purposes of the review that the court be in a position to ascertain the process and methodology engaged in the assessment. For that reason I consider that the applicants are entitled to cross-examine Mr. Corsi on his affidavit evidence” ([57]).

47. Counsel for the Minister emphasises this distinction between that case and this one. I accept that, to the extent that the decision in Somague was influenced by that specific context, this distinguishes it from the instant case. This is not any comment on whether Somague remains good law in the distinct procurement context (a topic which is not before me), but is rather a reflection of the distinction which Baker J. did draw between the specific legal context of Somague and domestic law cases, which may have informed the specific approach taken by her and have been intended as a limit to its application in other cases.

14 48. A fifth matter that must be noted, when assessing the weight which the Applicant asserts should be attached to Somague, is that, in cases since that judgment (even before Hegarty), there has been a reiteration of the so-called “orthodoxy” that a material and relevant conflict of fact must be shown for cross-examination to be ordered. In Trafalgar (decided before Hegarty), Barniville J addressed the law on this point and set out the following passage from Delany and McGrath on Civil Procedure (4th ed., Round Hall, 2018), at p. 812:

“21–108 Although the decision in [Director of Corporate Enforcement v. Seymour[2006] IEHC 369] has been followed in a number of subsequent cases, and, Kelly J. in Irish Bank Resolution Corporation Ltd. v. Quinn [[2012] IEHC 510, [2012] 4 I.R. 381], rejected the contention that O'Donovan J. had gone beyond the parameters of the previous authorities, subsequent decisions have reiterated the orthodoxy that there has to be a conflict of evidence on affidavit, the resolution of which is necessary to decide an issue before the court in order for cross-examination to be ordered. In Irish Bank Resolution Corporation v. Moran [2013] IEHC 295], Kelly J. summarised the position by saying that:

‘15. It is incumbent upon an applicant for such an order to demonstrate (1) the probable presence of some conflict on the affidavits relevant to the issue to be determined and (2) that such issue cannot be justly decided in the absence of cross examination’.” (Footnotes omitted.)”

49. Barniville J. then observed, “I agree that these are the general principles applicable when considering whether to permit cross-examination in a case heard on affidavit” (at [53]). This supports the “orthodoxy” that there must be a conflict of fact which needs to be resolved for cross-examination to be permitted. Barniville J. distinguished the judgment in RAS Medical, (among others) on the basis that it was about a substantive final hearing on the merits in judicial review proceedings. Trafalgar, by contrast, concerned an interlocutory application to amend proceedings to give effect to an alleged migration or re-domicile of the first and fourth plaintiffs.

50. Finally, there are of course cases in which leave has been granted for the cross-examination of deponents in judicial review proceedings. The Applicant relies on Salmon Watch Ireland CLG v Aquaculture Licences Appeals Board [2023] IEHC 129 (“Salmon Watch”) as one such example. In that case, Holland J. summarised the applicable law as follows:

“The law in this area is not much in dispute. The underlying general principle is that where a conflict of evidence on affidavit requires that the evidence of one witness be

15 preferred to that of another, it is unfair to prefer the evidence of the one to the evidence of the other without giving the other an opportunity, under cross-examination, to respond to the evidence of the one and to explain any matters which might suggest that his/hers should be preferred” (at [5]).

51. While he addresses RAS Medical and Somague, Holland J. summarises the applicable principles as follows: “cross-examination is necessary only where facts – or, in the case of expert witnesses, opinions – are genuinely in dispute and resolution of that dispute is material to the determination of the proceeding” (at [7]).

52. A case cited by the Minister, in which leave was refused, is Murphy v. Revenue Commissioners [2022] IEHC 352 (“Murphy”). There, Simons J. addressed the costs of a prior unsuccessful application for cross-examination (which costs had been reserved). It was accepted that there was a conflict of fact as between the affidavit evidence sworn by the parties, but the respondent had prevailed in showing that the resolution of this conflict was not necessary to the determination of any legal issue in the proceedings. Simons J. summarised the correct approach as follows (before addressing the judgment of the Court of Appeal in Hegarty):

“The submission that it is not sufficient for the purposes of an application for leave to cross-examine merely to demonstrate the existence of a factual dispute, but that it must also be demonstrated that the dispute is relevant to a legal issue in the proceedings, is undoubtedly correct” (at [7]).

53. Having heard the substantive proceedings, Simons J. was satisfied that the respondent had been justified in opposing the cross-examination application and was entitled to the costs of that application.

54. From the foregoing summary, it can be seen that there are certainly a number of judgments which reference (and some which endorse) the judgments in Somague and Seymour, and there are undoubtedly judicial review proceedings in which cross-examination has been, and can be, directed. Each case hinges on its specific facts and on the exercise of the discretion of the court. Nonetheless, the prevailing “orthodoxy” and the principles that have been adopted and applied in recent years are – necessarily and correctly - those which are set out in Hegarty and RAS Medical. I have already summarised the relevant principles that may be derived from those judgments (at [31] above) and those are the principles which I will apply in deciding this application.

16 ISSUES TO BE DETERMINED IN THE PROCEEDINGS

55. In light of the principles that govern this motion, it is necessary to identify the issues that need to be determined and whether and to what extent they hinge on the resolution of factual conflicts or the determination of credibility challenges.

56. There are eight reliefs sought by the Statement of Grounds filed by the Applicant on foot of the order of the High Court of 18 July 2022 granting leave for the issue of the proceedings. I note that the order only recites four of the five substantive reliefs sought, but the order also refers to leave being granted for the eight reliefs sought in paragraph D of the Statement of Grounds and proceed on the basis that leave was given to pursue each of the reliefs sought. There was no indication to the contrary at the hearing before me. The five substantive orders sought are:

(a) A declaration by way of judicial review that the acts of the first Respondent in granting authorisations to transporters, such that they may transport unweaned calves on journeys by sea from Ireland to the European continent, where the transporters do not maintain any or adequate records of the journey is in contravention of the requirements of the first respondent under the [Regulation] (“The Record Keeping Ground”). (b) A declaration by way of judicial review that the acts of the first Respondent in pursuing and/or permitting the policy and practice of transporting unweaned calves by sea from Ireland to the European continent is a policy and practice that causes or is likely to cause injury and undue suffering to unweaned calves, and is therefore in contravention of [provisions of the Regulation and the Animal Welfare Act 2013 (“the 2013 Act”)] (“the Injury and Undue Suffering Ground”); (c) A declaration by way of judicial review that the acts of the first Respondent in authorising the transport of unweaned calves by sea from Ireland to the European continent on journeys where it is accepted that the unweaned calves cannot receive any feed in the form of liquid, or milk, or milk replacer, is in contravention of the requirements of the first respondent [ under the Regulation and the 2013 Act] to provide feed to unweaned calves (“the Feeding Ground”); (d) A declaration by way of judicial review that the acts of the first Respondent in authorising the transport of unweaned calves by sea from Ireland to the European continent, on journeys where they cannot receive water or liquid, is in contravention of the requirements of the first respondent under [provisions of the Regulation and the 2013 Act] to provide water and liquid to unweaned calves (“the Water Ground”); (e) A declaration by way of judicial review that the acts of the first Respondent in authorising the transport of unweaned calves by sea from Ireland to the European

17 continent is in contravention of the first respondent's inspection obligations under Article 20 of the Council Regulation, in particular in circumstances where it is accepted that unweaned calves cannot receive any feed in the form of liquid, or milk, or milk replacer on board livestock vessels; and where there is a lack of record keeping such that the total time of the live export journey cannot be known to the first respondent (“the Inspection Ground”).

57. The case as pleaded in respect of each of these grounds will now be addressed in turn.

Ground One: Record Keeping

58. The Applicant’s pleaded case is that journey logs have been obtained from the Minister; that five logs were missing; and that it is clear from the logs that the journeys approved by the Minister can be up to 28 hours, 27 minutes in length. The Statement of Grounds lists the journey logs received, the information contained in them, and identifies the duration of the journeys in question. That information is in the possession of the Applicant and is not disputed. Further, it is pleaded in the Statement of Grounds that the fact logs are missing amounts to a breach of the Minister’s obligations under the Regulation to adequately inspect or monitor or keep records. It is pleaded that the journey logs of which the Applicant is in possession are incomplete, as they do not contain loading times, and the Minster thereby fails in his obligations to carry out inspections and his obligation to keep records under the Regulations.

59. The position pleaded in the Statement of Opposition is that there is no obligation on the Minister to maintain journey logs for journeys within the customs areas of the EU. It is also denied that the logs do not show the departure time. A specific issue of legal interpretation is whether the Minister is obliged to authorise individual journeys (as the Applicant pleads), or not (as the Minister pleads).

60. The issues raised under this heading primarily concern the content of the logs which are in the possession of the Applicant and the correct interpretation of certain provisions of the Regulation. The Applicant also refers to missing journey logs, which is one of the topics on which cross-examination is said to be necessary and is addressed under that heading below.

Ground Two: Causing injury and undue suffering

61. This ground concerns the asserted obligations to provide feed and water during transport. The Applicant refers in the Statement of Grounds to the position of the Minister that there are no explicit requirements in the Regulation on watering and feeding. The Applicant disagrees

18 and pleads that the Minister is incorrect. This is a matter of interpretation of the Regulations. It is pleaded by the Applicant, based on the expert report of Prof Broom and the undisputed position of the Minister, that transporting unweaned calves for journeys of between 23 and 37 hours without feed will cause suffering and poor welfare for those calves. It is pleaded that the requirements of the 2013 Act are breached.

62. The position of the Minister in the Statement of Opposition is that the 2013 Act does not apply to the Minister. The Minister accepts in the Statement of Opposition that unweaned calves cannot receive feed on board live export journeys. The affidavit of Ms Meaney on behalf of the Minister accepts that the time between feeding is the time from the assembly centre or farm of origin to the arrival at the control post in Cherbourg. There is no dispute as to this factual question.

63. From the pleadings, it is apparent that there is a difference between the Applicant and the Minister as regards the interpretation of the requirements of the Regulation and the scope of the 2013 Act. These are pure questions of law, which can be determined absent any cross- examination or resolution of any factual conflict. Furthermore, as will be addressed in more detail later in the judgment, there is no dispute as regards certain underlying facts, such as the content of the journey logs and the fact that no feed is available during the journey.

64. There may be relevant differences of opinion as between the experts retained by both sides as to whether the conditions would cause injury or undue suffering. The opinions of the experts are not addressed in this judgment.

Ground Three: Feeding

65. It is pleaded that unweaned calves cannot receive feed on board live export journeys and that results in contraventions of the Regulation and the 2013 Act. Significantly, the Minister admits that it is not possible to provide milk feed to unweaned calves on journeys by sea and that such journeys in which no feed is provided are given approval. The Minister denies in the Statement of Opposition that either the Regulation or the 2013 Act place obligations on the Minister with regard to feeding requirements for transport at sea.

66. On the basis of the case as pleaded, it is not apparent that there is a relevant factual dispute. The question instead is the correct interpretation and scope of the provisions of the Regulation and the 2013 Act.

19 Ground Four: Watering

67. The Applicant relies on the position of Prof Broom that calves cannot be watered on normal commercial vehicles and that very few will receive water on board the live export journey. The Applicant also relies on the evidence of Ms Rowley of specific instances on which she witnessed animals in cramped conditions on board trucks with no ability to access water. The Applicant’s pleaded case is that the Minister has acknowledged the calves cannot be fed on board live journeys and have not provided information about how they receive water. It is pleaded on this basis that there are contraventions of provisions of the Regulations and the 2013 Act.

68. The Minister admits in the Statement of Opposition that feed cannot be provided on normal commercial vehicles. The Minister’s case is that the Minister has provided information about the nature of the checks of the watering systems that are carried out. There is, according to the Minister, a check by the official veterinarian before each journey to ensure the water system and ventilation systems are in good working order and that sufficient water for the journey is carried on board for the number of animals and length of the journey. The Minister does also plead that unweaned calves are provided with water from at least two drinkers every 12 hours. These matters are confirmed on affidavit by Ms Meaney.

69. As the Minister relies on information about the systems that are required and the nature of the checks carried out, the question of law which arises is whether that system and those requirements constitute a contravention of the Regulations or the 2013 Act. It is not apparent from the pleadings that there is a factual dispute that needs to be resolved in this respect.

Ground Five: Inspection

70. The Applicant pleads that the Minister is under specific inspection obligations to inspect livestock vessels before unweaned calves are loaded and unloaded from vessels, including for the purpose of ensuring animals have access to fresh water. It is pleaded that the Minister has disregarded the plain language of the requirements of the Regulation and allowed journeys to take place where unweaned calves receive no liquid on live export journeys. It is said that, because calves receive water through their feed (milk) and no feed is provided during such journeys, the inspection requirement is being breached.

71. The Minister’s response in the Statement of Opposition is that the inspection obligations under the Regulation expressly exclude “roll-on-roll-off vessels” which are the vessels addressed in the journey logs which the Applicant relies on. It is denied that there is an inspection obligation as pleaded by the Applicant, rather there are random checks on board and at port.

20 72. It may immediately be noted that it is not in dispute that no feed is provided during the sea journeys. This undisputed fact is part of the factual basis of the claim against the Minister that the inspection requirement of the Regulations has been breached. There is no apparent relevant factual conflict in this respect. According to the Statement of Grounds, this ground hinges on contrasting interpretations of the requirements of the Regulations as to the requirements for feeding and watering unweaned calves on long journeys. There is also a relevant legal question as to whether the obligations of inspection pleaded by the Applicant do in fact apply to the vessels and the journeys at issue in these proceedings. These are questions of law and interpretation and not ones of fact.

73. There is a distinct assertion that because the logs lack relevant information as to where and when the journey began, and therefore how long the calves are on the trucks, the Minister cannot properly discharge the inspection obligations under the Regulations. This ground fundamentally turns on issues of law and the interpretation of objective facts (the journey logs).

TOPICS ON WHICH CROSS-EXAMINATION SOUGHT

74. It can be seen from the foregoing summary of the issues that fall for determination in these proceedings, as pleaded by the parties in the Statement of Grounds and in the Statement of Opposition, that the issues in these proceedings are fundamentally ones of law and legal interpretation. This is not surprising, given that these are judicial review proceedings. From the case as pleaded, it is not apparent that any factual conflict or credibility challenge needs to be resolved for a decision to be reached on the issues in the proceedings.

75. While the Applicant contends that there are conflicts between the affidavits as to the construction, or interpretation of, or conclusions to be drawn from, facts. I have already determined that such conflicts do not typically justify cross-examination in an application of this nature.

76. It is also said that the Applicant’s claim is fully contested by the Minister in Ms Meaney’s affidavit and that the majority of Ms Meaney’s averments are contested by Ms Rowley on affidavit. Insofar as this turns on general traverses or denials, I am satisfied that such averments are not sufficient to evidence a conflict or challenge that may ground an application for cross-examination. A specific contest, conflict or challenge must be set forth. It is next necessary to consider each specific topic which the Applicant asserts warrants and requires the cross-examination of Ms Meaney.

21 a. Ability to provide water adequately or at all on board live export journey

77. The Applicant’s case is that water cannot be provided on the journeys in question and that there is a factual contest on this point. Reliance is placed – under this heading and several of the others - on the following specific averment by Ms Rowley in her verifying affidavit:

“15. I have had sight of the cramped conditions that unweaned calves are kept in at Rosslare Europort. I have footage of a recent live export journey filmed on 5th February 2022 , where no water system was visible and the 295 calves on board were in such cramped conditions that no one calf could have received water unless it was given to them directly by an attendant. I beg to refer to a copy of these images and the relevant journey log, upon which are exhibited at Tab 7 of Exhibit "CRl".”

78. Reliance is placed on the following averment in that affidavit:

“16. I further say that unweaned calves receive most of their water through milk replacer, their feed. Therefore, I do not understand how the first named respondent can maintain its position the calves are adequately watered when they have confirmed that the calves cannot receive feed on board the live export journeys.”

79. The Applicant also points to Ms Rowley’s replying affidavit, in which she refers to witnessing calves travelling in cramped conditions on 3 March 2022 at Rosslare Port. The position put in correspondence on behalf of the Applicant (letter 6 November 2024) is that the Minister contests that water cannot be provided on board the live journeys and that this is a factual conflict that needs to be resolved.

80. The response in Ms Meaney’s First Affidavit, is that there are requirements with regard to water systems and ventilation for the transport of calves, with checks done at the time of consignment to ensure the system is working and further unannounced inspections being carried out, to include inspection of those ventilation and water distribution and delivery systems and inspections to ensure there are not cramped conditions. Ms Meaney avers in her first affidavit at [91] that “… unweaned calves transported by sea on roll-on-roll-off vessels are provided with water from at least two water drinkers in every pen at least every 12 hours. The water is distributed under pressure to the drinkers.”

81. The position of the Minister is that the Applicant has not set out any evidence to contradict these averments and it is said that the bald assertion that the Applicant does not accept these facts does not give rise to an entitlement to cross-examine Ms Meaney. Reliance is placed on

22 the fact that Ms Rowley in her replying affidavit does not address paragraphs 19 to 22 of Ms Meaney’s affidavit in which the water delivery systems and their functioning is described.

Assessment

82. I have already outlined the case as pleaded in respect to Ground Four on the topic of “watering”. The pleaded position of the Minister is based on the systems and checks that are in place. The averments by Ms Meaney are similarly largely based on the general requirements and systems that are required to be in place and the process of inspection of same. Ms Meaney’s assertions are described by the Applicant (letter 6 November 2024) as “generalised”. By contrast, the Applicant’s case is based largely on two specific examples.

83. It is not apparent to me that averments about the systems that are required and the rules that are in place to inspect and supervise them, are factually contradicted or challenged by the evidence of Ms Rowley about her specific observations on specific dates. It is also important to point out (as noted by counsel for the Minister) that Ms Meaney does not contradict or deny the images on which Ms Rowley relies. She does not purport to have been present at the time or place of the observations recorded by Ms Rowley. I do not see that there is a relevant factual conflict on these points, but even if there was, cross-examining Ms Meaney would not advance the resolution of any such conflict.

84. I also note that the Applicant relies (in pleadings and in correspondence) on the absence of feed during the journeys as evidence of the inadequate water supply: it is said that there cannot be sufficient watering without feed. There is no factual dispute or challenge on this point, as the Minister admits that there is no feed supplied during the journeys. There is no basis to grant leave for cross-examination under this heading. The Minister is also correct to point out that some specific averments by Ms Meaney regarding the water system are not disputed on affidavit by Ms Rowley. I reject the contention by counsel for the Applicant that a generalised, catch-call averment disputing the opposing evidence meets the threshold for directing cross- examination. I do not believe that the tests for ordering cross-examination are satisfied under this heading.

b. Missing journey logs

85. One of the claims by the Applicant is that there are specific journey logs missing and this emerged from the response to a Freedom of Information Act (“FOI”) request dated 12 May 2022. In her second affidavit at [27] and [28] Ms Rowley also addressed the missing logs from FOI requests made in 2020 and 2021 (paragraphs which were emphasised by counsel for the Applicant during the hearing before me).

23 86. The replying affidavit sworn by Ms Meaney addresses the evidence about the 2022 FOI documentation by explaining the timeframes and practices for the return of journey logs. She points out that transporters have one month post-journey to return journey logs, although it can take longer before they get to the Minister’s office, whereas there are tight timeframes of four weeks to respond to FOI Requests. Ms Meaney explains, “In some instances, Freedom of Information (FOI) requests were made shortly after the journeys were completed by the transporters and before the journey logs were returned to the first respondent.”

87. In relation to the FOI request from 12 May 2022 to which Ms Rowley refers in her first affidavit, Ms Meaney was only able to confirm that two of the five journeys for which logs were missing took place and accepts that “difficulties” can arise in identifying journey logs. There is accordingly no dispute but that there are certain missing journey logs. Ms Meaney then references correspondence in which the Minister informed the Applicant that “in respect of unavailable journey logs, that ‘the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken”. She also confirms that enforcement action was commenced in respect of the two journeys for which logs were not received and the logs were ultimately received, one of which had been supplied to the Applicant.

88. Ms Meaney reiterates the pleaded position of the Minister that the Regulation “does not place an obligation on the first respondent to collect and retain all journey logs.” The position of the Minister is that there is in any event no evidence to contradict Ms Meaney’s averments. It is said that it is not clear how cross-examination on this issue will advance the Applicant’s legal claims in these proceedings. The position of the Applicant is that there is a conflict of fact because Ms Meaney’s interpretation of the facts is different to the interpretation of the Applicant that the logs are “missing”.

Assessment

89. On the basis of the case as pleaded, there is a legal question as to whether there is any obligation on the Minister to collect and retain journey logs. This is a legal question which does not require the determination of any factual conflict (even if such a conflict did exist).

90. Insofar as the Applicant places emphasis on missing journey logs, there is not a relevant factual conflict or credibility challenge on this point. The affidavit of Ms Meaney acknowledges that certain journey logs were not received (and were the subject of enforcement action) and has addressed in some detail the system and experience of collecting those logs. This evidence is not factually contradicted by the Applicant. On the basis of the evidence before me, I am not

24 satisfied that there is a substantiated relevant factual conflict or challenge that needs to be resolved on this point. As already noted, differences of inference or interpretation of the facts - which is what the Applicant relies on - do not justify or require cross-examination.

91. On the basis of the pleadings and evidence before me, I am not satisfied that there is a relevant factual conflict or a specific credibility challenge such as to justify the grant of leave to cross- examine Ms Meaney on the question of the missing journey logs.

c. Cramped conditions on boats

92. As already set out, Ms Rowley in her affidavit sets out her own personal, direct factual observations of what she says is overcrowding on a vessel transporting unweaned calves on 5 February 2022 and again on 3 March 2022. She also points to images which she says support her position in this respect.

93. Ms Meaney’s evidence on affidavit in reply states that the Minister has instructed its veterinary inspectors to inspect calves pre-export to precisely calculate the average weight of a consignment of calves by weighing a sample of them, and that a precise allocation of minimum surface area is mandated. It is said that this surpasses what is required by the Regulation. She states that the behaviour of calves can be misinterpreted by members of the public as suggesting the animals are suffering from hunger or thirst. Ms Meaney’s evidence is that the conditions on the journeys are monitored by veterinary inspectors and that they have verified that calves are not in cramped conditions. A sample of the reports prepared are exhibited to Ms Meaney’s affidavit.

94. The position of the Minister is that the Applicant makes bald assertions that calves are transported at stocking densities greater than that permitted by law but without any factual basis or evidence to support such assertions. It is said this does not give rise to a right to cross- examine. The question of cramped conditions is asserted to be relevant to Grounds Two and Four, as it is pleaded that this affects the ability of unweaned calves to obtain water during journeys.

Assessment

95. Ms Meaney’s averments are based on the systems that are in place for the weighing and inspection of calves before live journeys. The Applicant, by contrast, relies on the factual evidence of Ms Rowley based on her own observations on two occasions. The Applicant appears to want to challenge Ms Meaney’s interpretation of the facts, but there is no direct factual conflict. There is no conflict on affidavit as to whether Ms Rowley did observe what

25 she describes in her affidavit. The image she relies upon is not denied. The question of inferences or conclusions that may be drawn is not a matter that can justify cross-examination (based on the legal principles that govern this application).

96. Further, the cross-examination of Ms Meaney on her evidence as to the systems in place for weighing calves will not advance the determination of the issue pleaded or resolve any perceived conflict as regards whether there was overcrowding on the occasions identified by Ms Rowley. I do not consider that there is a relevant factual conflict that needs to be determined in this respect.

97. In oral submissions, it was contended on behalf of the Applicant that the evidence of Ms Meaney needs to be tested to demonstrate the limit to her means of knowledge. I do not regard this as an appropriate basis on which to direct cross-examination under this heading or any other. This is not a matter that arises from a factual conflict or challenge and can be addressed by way of submissions as the Applicant deems fit.

d. Whether or not calves are fed on the morning of transport

98. In her first affidavit, Ms Meaney avers as follows:

“73. The calves are fed at the assembly centres, unless travelling directly from farm of origin on day of export, in which case they would be fed at that farm, and then fed on arrival at the control post in Cherbourg …”

99. In her second affidavit, she further avers:

“7. Feeding of the calves is the responsibility of the assembly centre management and staff. In some cases, calf feeding takes place while inspectors of the first respondent are on the premises. ln addition, assembly centres are among the most highly regulated premises in agriculture, with a regular presence of veterinary inspectors of the first respondent and technical agricultural officers. They are subject to a regime of regular and thorough inspections, which include assessment of feeding facilities and practices.”

100. The position of the Minister is that the Applicant has not provided any evidence to contradict the above and has not demonstrated that there is any entitlement to cross examination.

101. The position of the Applicant in the letter of 6 November 2024 is that it needs to test the basis for the conclusion by Ms Meaney in her first affidavit (at [14]) that the animals “should be fed” at the assembly centres or farms of origin.

26 102. In oral submissions, counsel for the Applicant also points to Ms Rowley’s second affidavit, in which she refers to inquiries she made at various marts in early 2023 as to whether calves are fed at “marts and/or assembly centres” and states what she was “told”.

Assessment

103. The starting point is that the case as pleaded does not relate to feeding pre-boarding the vessel. Grounds Two and Three are potentially relevant here and both are pleaded on the basis of the absence of feeding during the journey. Given the admission by the Minister that no such feeding during the journey does take place, there is no relevant factual contest and no issue pleaded that warrants cross-examination with regard to the issue of feeding pre-boarding.

104. In any event, a desire to test the “basis” for conclusions stated on affidavit is not a valid ground for seeking cross-examination. It is also relevant to observe that the affidavits of Ms Meaney are addressed at a level of generality to what “should” occur and what the systems and rules are intended to achieve. She does not purport to have any insight into, or responsibility for, the actual feeding of calves. There is also no contradictory evidence and no factual conflict on this point.

105. As regards the blatantly hearsay averment by Ms Rowley regarding conversations she had with unidentified persons in early 2023, this is not admissible evidence of fact and is in any event ambiguous and unclear.

106. I see no relevant legal question, or factual conflict or credibility challenge that needs to be resolved, that justifies or requires cross-examination of Ms Meaney on this issue.

e. Whether or not small / weak calves are removed from consignment on morning of journey at assembly centre

107. In her first affidavit, Ms Meaney gives an “overview of system of exporting unweaned calves from Ireland” and avers that “At the assembly centre, on the morning of the journey by ferry, the calves are inspected by a veterinary inspector and checked that they qualify for the animal health conditions in the intracommunity trade health certificate with the assistance of one or more Technical Agricultural Officers. Any small or weak or unfit calves are taken out of the consignment and refused permission to travel” (at [15]).

108. The Applicant asserts that there is a factual conflict here and relies on the expert report of Prof Broom dated 19 May 2022. The position of the Minister is that the Applicant has not offered any evidence to contradict these facts and, insofar as the Applicant relies on the evidence of Prof Broom, the Minister points out that he is a Professor of the Department of

27 Veterinary Medicine of the University of Cambridge and does not have the requisite means of knowledge to contest these facts.

Assessment

109. I do not see how there is a direct factual conflict on these questions. There is evidence of a systemic nature from Ms Meaney and purported expert evidence advanced on behalf of the Applicant, but these do not engage on the same terrain. There is no factual conflict or challenge to the credibility of Ms Meaney’s evidence, but rather an attempt to challenge the inferences from, or interpretation of, her evidence.

110. Furthermore, it is not apparent to me what legal issue that needs to be determined in these proceedings is said to require the resolution of this alleged factual question. The Applicant asserts in correspondence (6 November 2024) that it is relevant to Ground Two, but it is not part of the case as pleaded, but was rather included in Ms Meaney’s affidavit as part of a background overview of the system.

111. There is no basis for cross-examination in this respect.

f. The amount of time trucks spent at port before ferry departs

112. Ms Meaney avers, at [18] of her first affidavit that “the ferry journey takes typically 17 to 18 hours. The trucks can arrive at Dublin or Rosslare about an hour before the ferry departs”. Sample journey logs are exhibited by Ms Rowley to her affidavit of 15 June 2022. The Minister also relies on the journey logs and the enforcement steps which are taken when these are not received.

113. The Minister’s position is that Ms Meaney has given her evidence of the systems in place to ensure compliance with the obligations of the Minister under the Regulations and that there is no relevant factual contest or conflict or need for cross-examination.

114. The Applicant contends that Ms Rowley in her verifying affidavit contradicts that evidence of Ms Meaney. The averments by Ms Rowley set out the journey times based on the journey logs obtained by the Applicant. It is said by the Applicant that these show instances of the vessels arriving more than an hour before the journey time (in one case it was over two and a half hours).

28 Assessment

115. The averments by Ms Meaney address what “typically” happens and what “can” happen. She does not purport to give factual evidence of every journey based on personal insight or knowledge. The averments by Ms Rowley that are alleged to give rise to a basis for cross- examination are based on journey logs that are in the Applicant’s possession and which are not in dispute.

116. I do not accept that evidence that, in some instances, trucks do or can arrive at the port more than an hour before the ferry journey, clashes with, or challenges the credibility of, the averment that the trucks “can arrive” there “about an hour” before the ferry departs. There is again a failure to identify a genuine factual conflict or credibility challenge such as to warrant cross-examination. The Applicant can advance its case under Ground Two (to which this appears to relate) in reliance on the evidence of the journey logs and no cross-examination is necessary or warranted.

g. The space allocated to calves in trucks

117. The Applicant asserts that the evidence of Ms Meaney as regards the systems, checks and requirements that are in place is contradicted by the evidence of Ms Rowley regarding her observations of a live export journey on 5 February 2022 and on 3 March 2022.

118. For the reasons already noted under (c) above, I reject the contention that there is a factual conflict or credibility challenge on a material issue in this respect. It has not been shown that cross-examination on this issue is warranted or appropriate.

h and i. The welfare standards of calves in issue / How often should calves receive feed / liquid

119. Both of these headings raise questions as to how calves should be treated and as regards the applicable welfare standards.

120. The Minister regards these as a matter more of expert opinion than fact, based on the provisions of the Regulation. I agree. There is no relevant factual conflict or dispute on these questions. Indeed, the letter of 6 November 2024 which sets out the position of the Applicant on the individual topics with most clarity, refers primarily to the evidence of the expert witnesses on this point.

29 EVIDENCE OF MR RICARDO GATICA

121. In his affidavit sworn on 16 January 2024, Mr. Gatica verified an averment by Ms Meaney with regard to an inspection report he had prepared. That pertained to an inspection he carried out on 9 April 2022 on the WB Yeats bound for Cherbourg to ensure that the water system was working on the lorry. Ms Meaney explained that the driver checked the calves and gave them access to water in Mr. Gatica’s presence and that there was a typographical error by Mr Gatica in that he answered “N” rather than “Y” as to the functioning of the water system on that occasion. In his affidavit, Mr Gatica confirmed Ms Meaney’s account was accurate and reflected his recollection of events.

122. There is no affidavit challenging the accuracy or credibility of the evidence that it was a typographical error. The Applicant has not offered any factual basis to contradict or challenge the affidavit of Mr Gatica. There is therefore no basis to direct the cross-examination of Mr. Gatica.

CONCLUSIONS

123. Having considered the relevant legal principles, the issues that require determination in these proceedings, and the topics on which cross-examination has been sought, I am not satisfied that this is a case in which it is appropriate to grant the relief sought by the Applicant. The Applicant has not demonstrated the existence of relevant conflicts of fact or credibility challenges which need to be resolved for the determination of the issues presented by the pleadings. I am of the view that the just and appropriate order to make, in the exercise the discretion conferred by Order 40, Rule 1, is an order refusing to direct the cross-examination of Ms Meaney or Mr Gatica.

124. While the Applicant has been unsuccessful in this motion, it is an interlocutory matter and my provisional view is that a judge who has presided over the trial and heard and determined the issues, will have a better insight into them than is available to me, and is likely to be in a better position to justly determine the correct allocation of costs. I am therefore of the provisional view that it is appropriate to make an order reserving the costs of this motion. If the parties (or either party) should wish to contend for a different costs’ order, written submissions of no more than 2,000 words in length may be delivered by 6 February 2026. I will then list the matter before me at 10.30am on 10 February 2026 for the purpose of determining the allocation of costs and making final orders.

30