The High Court has refused an application to cross-examine a Uisce Éireann expert ahead of judicial review proceedings concerning manganese levels in drinking water supplied from the Lee Road water treatment plant.
Friends of the Irish Environment CLG, Elaine Eagar and Daniel O’Shea sought permission to question Professor John Fawell, who had sworn two affidavits for Uisce Éireann. The Environmental Protection Agency is the respondent, while Uisce Éireann and the Health Service Executive are notice parties.
The underlying proceedings concern repeated manganese readings above 50µg/l in the Lee Road catchment and whether those exceedances present a risk to human health. The applicants rely on expert evidence from Professor Scally, who expressed the view that the exceedances posed a health risk and that restricting or prohibiting supply was appropriate on a precautionary basis.
The immediate application, however, was narrower. The court had to decide whether conflicts between the experts required oral cross-examination before the judicial review could be determined.
Ms Justice Emily Farrell said cross-examination in judicial review cases is rare. It may be required where competing factual or expert evidence must be resolved before the court can decide a material legal issue. It cannot be used to fill gaps in evidence, explore new grounds or conduct a wider examination of the decision under challenge.
The applicants identified seven areas of alleged disagreement. The judge found that several concerned legal questions rather than genuine expert conflicts, including interpretation of the Drinking Water Directive, the 2023 Drinking Water Regulations, the precautionary principle and the legal status of World Health Organization guidelines.
She was not satisfied that cross-examination was presently necessary. The application was therefore refused.
The ruling does not decide whether the manganese levels breach legal requirements or whether the water presents a health risk. Farrell J. said that if her findings on the legal issues later make cross-examination essential to resolving the proceedings, she may revisit the question without inviting a fresh application.