knowledge 8 May 2026 |

Navigating Public Inquiries (Part 3): Process and Oral Hearings

Oral hearings — process issues

Oral hearings at public inquiries tend to follow a more ‘inquisitorial’ process than oral hearings in the courts. The purpose of public inquiries is rooted in fact-finding. Unlike the courts, public inquiries are not engaged in the adjudication of rights and obligations as between the parties involved.  Some key points of note on oral hearings in public inquires include:

• Direct examination: Typically, the public inquiry (either itself or through its legal team) will conduct the direct examination of witnesses called. 
• Cross-examination and participation: The public inquiry will also determine the extent to which other parties may participate in oral hearings and whether, for example, they will have a right to cross-examine witnesses. The extent of a party’s right of participation in the inquiry will usually hinge on whether that party’s fundamental rights (fair procedures, good name and reputation, livelihood, legal representation, etc) may be adversely affected by the inquiry.  Equally, the right of witnesses to be formally legally represented will normally depend on whether those witnesses are ‘mere’ factual witnesses or whether their fundamental rights are engaged, although it is commonplace, that witnesses in public inquiries obtain independent legal advice in advance and throughout the oral hearings, even if they are not formally represented at the inquiry.  If the fundamental rights of a party or a witness are engaged, they should be afforded the “full panoply” of procedural protections identified in Re Haughey [1971] IR 217 and as developed in subsequent cases. 
• Modular participation: In multi-issue public inquiries, some parties may be allowed to participate and cross-examine witnesses only in respect of certain ‘modules’ in the inquiry and not on a carte blanche basis.
• Witness statements: It can be helpful for witnesses to deliver witness statements in advance of their evidence. This sometimes feels counter-intuitive for individual witnesses, but, in our experience, written statements can assist the witness in articulating their thoughts and recollection in advance of any oral evidence and also encourages adequate preparation by reference to the available documentary evidence. Witness statements also help to crystallise issues at a much earlier stage in oral evidence and bring more predictability to the process, for both the witness and the public inquiry itself.
• Documentary disclosure: As a matter of fairness, key witnesses should be afforded a sufficient opportunity, with their advisors, to consider the documentary evidence before the inquiry. The amount of time allowed to parties and witnesses for review purposes will depend on a number of variables, particularly the quantity and complexity of the documents in question, and whether the relevant party or parties have seen the documents or a portion of the documents before. The inquiry and the parties may also wish to obtain independent expert evidence in relation to documents which are technical or specialised in nature.  
• Privilege against self-incrimination: Public inquiries cannot compel evidence from a witness which would incriminate that witness. To the extent that evidence is invited from a witness which would tend to incriminate that witness, the witness is entitled to greater procedural protections, including the right to access legal advice, and such protections should be carefully respected by the inquiry. 
• Guarding against bias and the perception of bias: While the legal test to establish bias on the part of a decision-maker in a public inquiry presents a high bar, the concept of bias is foundational to the law of fair procedures and should be forefront in the decision-maker’s mind. During the course of the inquiry, it is important that the decision-maker would proactively avoid situations which would give rise to any perception of bias or pre-judgment in relation to the subject-matter of the inquiry. Equally, any conflicts of interest or perceived potential conflicts of interest must always be fully disclosed: this can sometimes arise, for example, where the decision-maker is personally acquainted with one of the witnesses under examination.  
• Submissions on witness evidence: When the oral evidence has closed and no further witnesses will be called, the parties and their advisors should be afforded a reasonable opportunity to consider the evidence delivered to the inquiry, to make submissions on that evidence and the conclusions and inferences which the parties submit that the inquiry should draw from that evidence. A period to allow delivery of replying written submissions may also be appropriate, though need not usually be provided unless requested by the parties or particular parties to the inquiry, and care should be taken to ensure fairness of opportunity in that regard. In most scenarios it will be appropriate that some or all of the parties will be afforded an opportunity to deliver oral submissions and replying oral submissions to the inquiry, through their lawyers. What is reasonable and fair in these respects will, again, depend on the circumstances. 
• Costs: Public inquiries can easily become a significant financial burden on the parties involved, some of which, depending on their level of involvement and the complexity of the issues and documents before the inquiry, may require significant legal support to defend their interests and position. It is vital that all organisations have in place a robust and adequate ‘Directors and Officers’ insurance policy, that premium payments on that policy are always kept up-to-date, and that the insurer is properly (and promptly) notified of the commencement of the inquiry in accordance with the requirements of the individual policy. Employers may find themselves indemnifying their employees’ independent legal costs in preparing to give evidence and any related advice required. It may, however, be possible in some contexts to recoup legal costs or a portion of those costs from the inquiry itself, e.g. section 24, Commissions of Investigation Act 2004. The cost of public inquiries is typically borne by the State, but in certain contexts may be ordered against the party under investigation, e.g. in the case of corporate investigations by court-appointed inspectors (section 762, Companies Act 2014).

Commentary

Ensuring that a public inquiry is conducted in a manner which is lawful and procedurally fair is essential to maintaining the inquiry’s integrity, credibility and findings. By adhering closely to the applicable legal framework, remaining vigilant to evolving process requirements, and fostering transparent engagement with all parties and witnesses, inquiries can minimise the risk of challenge and ensure robust, defensible conclusions. Careful and proactive management of the process issues relating to documentary and oral evidence, and respect for procedural rights, are critical components of any successful inquiry in achieving its fact-finding objectives and upholding public confidence in its process and findings.