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2004 No. 39

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)

IN THE MATTER OF AN APPLICATION BY GERALDINE FINUCANE FOR JUDICIAL REVIEW AND IN THE MATTER OF DECISIONS OF THE SECRETARY OF STATE FOR NORTHERN IRELAND

APPLICANT’S SKELETON ARGUMENT ON DISCOVERY AND CROSS-EXAMINATION

1. The Court can order discovery or cross examination where there is some proper factual issue requiring resolution (such as would be crucial to whether or not there is a ground for judicial review) or some proper basis for doubting in a relevant respect the accuracy or completeness of the evidential picture.

2. Generally, an order for discovery should be unnecessary given the defendant’s duty of candour (Fordham 1.3.4 (C) and 19.4.2 (C).

3. While the power to order discovery or cross-examination has traditionally been used sparingly the court can order either or both if

a)      justice requires it and/or;

b)     it is necessary for the fair disposal of the case and/or

c)      there is material which alerts the court to the possibility that the evidence before it is incorrect or incomplete.

4. See Fordham (3^rd ed) at 19.3.11 and 19.4.6 also De Smith (5^th ed) at 1-159.

5. The reasons as to why both discovery and cross-examination are required in the present case can be seen from the affidavit of Peter Madden dated 26^th May 2004 which grounds these applications.

Dated this 1^st day of June 2004

Seamus Treacy QC, SC

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