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Admissibility of evidence and rules for oral hearings conducted by adjudicators
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86. (1) This section applies to an oral hearing before an adjudicator.
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(2) An adjudicator may, by notice, in writing—
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(a) summon a witness to appear to give evidence, or to produce before the adjudicator any books, documents or records in such person’s power or control, or to do both, and
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(b) require the witness to attend an oral hearing from day to day unless excused, or released from further attendance, by the adjudicator.
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(3) An adjudicator may require evidence to be given on oath or affirmation, and may for that purpose—
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(a) require a witness to take an oath or affirmation, and
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(b) administer an oath to the witness orally or permit the witness to affirm.
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(4) The oath or affirmation to be taken by a witness for the purposes of this section is an oath that the evidence the witness will give shall be true.
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(5) The adjudicator may allow a witness at the oral hearing to give evidence by tendering a written statement, provided such statement is verified on oath or affirmation.
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(6) Without prejudice to subsections (1) to (5), the adjudicator has the same powers, rights and privileges as a judge of the High Court when hearing civil proceedings on the occasion of that action including with respect to—
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(a) the attendance and examination of witnesses on oath or affirmation or otherwise (including witnesses who are outside the State), and
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(b) compelling the production (including discovery) of records or an identified category or categories of records.
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(7) An oral hearing under this section may, at the discretion of the adjudicator, be held remotely (including in an online format), and evidence may be tendered as permitted by regulations or by an adjudicator.
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(8) At the oral hearing before the adjudicator—
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(a) an authorised officer or other representative of the Commission or any other person, with leave of the adjudicator, shall present the evidence in support of the referral, and
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(b) the testimony of witnesses attending the oral hearing shall be given in accordance with this section and any regulations made under this section.
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(9) A person to whom notice is given under subsection (2), or an authorised officer, may be examined and cross-examined at the oral hearing.
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(10) At any oral hearing before an adjudicator, there shall be a right to cross-examine witnesses and call evidence in defence and reply.
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(11) An oral hearing before an adjudicator shall be held in public unless the adjudicator is satisfied that, given the existence of special circumstances (which shall include whether information given or likely to be given in evidence is commercially sensitive information), the hearing or part of the hearing should be held otherwise than in public.
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(12) If special circumstances exist (which shall include whether information given or likely to be given in evidence is commercially sensitive information), an adjudicator may impose restrictions on the reporting or distribution of information given at the hearing.
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(13) The payment or reimbursement of, or of any part of, the reasonable travelling and subsistence expenses of a witness required to attend an oral hearing, is at the discretion of the adjudicator, and such expenses shall be discharged by the Commission.
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(14) The rules of evidence shall apply to an oral hearing before an adjudicator save as may be otherwise prescribed.
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(15) Nothing in this section compels the disclosure by any person of any information that the person would be entitled to refuse to produce on the grounds of legal professional privilege or authorises the inspection or copying of any document containing such information that is in the person’s possession, power or control.
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(16) The Minister may make regulations setting out further details or conditions for the receipt of evidence or the conduct of oral hearings under this section.
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(17) Subject to any regulations under subsection (16), the Commission shall make rules providing for the conduct of an oral hearing under this section and shall publish such rules on the website of the Commission.
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(18) Rules made under subsection (17) shall not have effect until they are published.
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