Court of Appeal dismisses appeal on drug scheduling, upholding High Court costs order against appellant.

AN CHÚIRT ACHOMHAIRC THE COURT OF APPEAL APPROVED - NO REDACTION NEEDED Court of Appeal Record Number: 2025 31 High Court Record Number: 2021/1092 JR Neutral Citation Number: [2025] IECA 216 Costello P. Hyland J. Collins J.

BETWEEN/ DENISE LYNCH

APPLICANT/APPELLANT

- AND -

THE MINISTER FOR HEALTH, THE COMMISSIONER OF AN GARDA SÍOCHÁNA, THE GOVERNMENT OF IRELAND, IRELAND, THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

JUDGMENT of Mr. Justice Anthony M. Collins delivered on the 31st day of October 2025

I. Introduction

1. In her appeal against the judgments of the High Court (Simons J.) delivered on 25 July 2024 ([2024] IEHC 463, hereafter ‘the first judgment’) and on 19 December 2024 ([2024] IEHC 712, hereafter ‘the second judgment’) respectively, and the order of the High Court made on the second of those dates, Ms. Denise Lynch (hereafter ‘the appellant’) seeks no less than twelve reliefs by way of judicial review, the first of which is:

A Declaration by way of Judicial Review that the outright and absolute prohibition of all products containing even minimum levels of Tetrahydrocannadabinol (THC) or tetrahydro derivatives of cannabinol, contained within inter alia the Schedule of the Misuse of Drugs Act 1977, breaches the principle as to the free movement of goods within the European Union; breaches the Applicant’s rights under Articles 34 to 36 of the Treaties of the European Union (sic); breaches the Applicant’s rights under Regulation (EU)

1307/2013 of the European Parliament and Council; breaches the Applicant’s rights under natural and constitutional justice and breaches the Applicant’s rights under the laws of the European Union and therefore of Irish constitutional law.

2. In the course of the submissions addressed to this Court on behalf of the appellant and the first to fifth named respondents respectively, the appeal having been discontinued as against the sixth named respondent by agreement at the outset of the hearing of the appeal, it became clear that the appellant’s case stands or falls on the interpretation of the judgment of the Court of Justice of the European Union (hereafter ‘the Court of Justice’) in Case C-663/18 B.S. & C.A. (EU:C:2020:938, hereafter ‘Kanavape’). This judgment thus unfolds in the following way: first, a brief description of the factual background to the appeal and matters arising therefrom; second, an interpretation of Kanavape that considers both the findings made in the first judgment and the submissions advanced on the appellant’s behalf in this appeal; third, my rulings upon both appeals.

3. It will assist to explain some of the terms used in the Kanavape judgment, the first judgment and in the parties’ submissions. Cannabis sativa L. (hereafter ‘cannabis’) is an annual herbaceous flowering plant that has been cultivated throughout recorded history. It is, inter alia, a source of industrial fibre, oil, food, and medicine. Cannabis contains up to 113 organic compounds, or cannabinoids. Amongst these are tetrahydrocannabinol (hereafter ‘THC’), usually in the form of delta-9- tetrahydrocannabinol, and cannabidiol (hereafter ‘CBD’). THC is psychoactive. It is classified as a “narcotic drug” for the purposes of the United Nations Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol amending the Single Convention on Narcotic Drugs, 1961, concluded in New York on 30 March 1961 (United Nations Treaty Series, vol. 520, No. 7515, hereafter ‘the Single Convention’) and a “psychotropic substance” for the purpose of the Convention on Psychotropic Substances, 1971, concluded in Vienna on 21 February 1971 (United Nations Treaty Series, vol. 1019, No. 14956). As a consequence, THC comes within the ambit of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances concluded in Vienna on 20 December 1988 (United Nations Treaty Series, vol. 1582, No 27627). Ireland is a party to all three conventions: the European Union is a party to the third. As a cannabinol derivative within the meaning of s. 2(1) of the Misuse of Drugs Act 1977 (hereafter ‘the Act of 1977’), THC is a “controlled drug” for the purposes of that Act and the regulations made thereunder. The parties agree that, in the current state of the law of Ireland, a preparation or compound that contains a trace of THC is a controlled drug. CBD is a non-psychoactive extract of cannabis. It is not a “controlled drug” for the purposes of the Act of 1977.

II. Factual Background

4. The appellant is the owner of D.Hemp Shop located in the State, with an online presence which she claims permits her to advertise and to sell her products to prospective customers located throughout the European Union. D.Hemp Shop exposed for sale a number of products that contain CBD, including hemp oils manufactured by Hempture, which styles itself as Ireland’s oldest CBD producer. Hempture CBD oils are made in Ireland and approved by the Irish Industrial Hemp Association. Certificates of analysis provided by EirLab, on behalf of Hempture, exhibited at para. 12 of the affidavit that the appellant made on 24 November 2021, show that the CBD oils that it manufactures and which D.Hemp Shop purchased for sale may contain between 3% and 25% CBD. The same certificates also show that certain of those oils contained THC, but in a proportion that did not exceed 0.20%. At para.

7 of her affidavit, the appellant says that, with respect to the products sold by her business that may contain THC, the traces of that compound “are lawfully permitted within the parameters specified under, inter alia, EU Regulation 1307/2013 … .”

5. Paragraphs 7 to 11 of the first judgment state that, on 24 September 2021, members of An Garda Síochána executed, at the appellant’s business premises and at her home, search warrants that the District Court had issued pursuant to s. 26 of the Act of 1977. The items seized during the course of the search of the business premises included CBD oils. The appellant does not contest that THC is a psychoactive substance and that some of the CBD oils she exposed for sale may contain traces of THC. The appellant was thereafter charged with a number of offences under the Act of 1977, the hearing of which has since been adjourned from time to time.

6. Paragraph 6 of the first judgment states that “[t]he gravamen of the Applicant’s case is that a CBD based product—such, as for example, hemp oil—which contains elements of THC should not be regarded as a controlled drug provided that the proportion of THC is below a certain threshold, namely 0.2 per cent.” Two issues arise from these facts.

7. Notwithstanding the very thin evidential basis the appellant laid as to her engagement in trade between Member States as would entitle her to invoke Arts. 34 and 35 of the Treaty on the Functioning of the European Union (hereafter ‘TFEU’), which provisions guarantee the free movement of goods within the European Union, the first to fifth named respondents expressly declined to contest her reliance upon them in these proceedings. The Court duly takes note of that position.

8. Although the learned High Court judge noted at para. 41 of the first judgment that no admissible evidence had been adduced in the proceedings before him to suggest that the products seized from the appellant’s business premises had a THC content of less than 0.2% per cent, para. 4, above, indicates that hearsay evidence to that effect was before him. What is clear is that there was no evidence before the High Court of the percentage of THC contained in the cannabis plants from which the CBD in the oils she marketed had been extracted, as opposed to the percentage of THC in those CBD oils. The absence of evidence as to the THC content of those plants supports the first to fifth named respondents’ allegations that the centre of the appellant’s case, as presented to this Court, that a prohibition on the sale of products containing CBD extracted from cannabis plants that contained less than 0.2% of THC is contrary to EU law, has shifted from that which the learned trial judge described in the passage cited at para. 6, above. The absence of evidence as to the proportion of THC in the cannabis plants from which the CBD oils the appellant marketed were extracted may, in the light of this Court’s interpretation of Kanavape, have consequences for the outcome of this appeal.

III. The Kanavape Judgment

9. Paragraphs 23 to 27 of Kanavape set out extracts from the law of France that governs trade in, and the use of, poisonous plants and authorises establishments that offer cannabis products for public sale to cultivate, import, export and use cannabis plants. Under those provisions only the fibre and the seeds of cannabis plants that contain less than 0.2% THC could be used to manufacture those products. The passages from the Circular of the Ministry of Justice of 23 July 2018 concerning the legal regime applicable to establishments offering cannabis products for public sale (coffee shops) (2018/F/0069/FD2), reproduced at para. 27 of Kanavape, state that since CBD (and, indeed, THC) is found mainly in the leaves and flowers of cannabis plants, the French rules had the effect of preventing the sale, etc. of cannabis products that contained CBD.

10. Paragraphs 28 to 30 of Kanavape explain that B.S. and C.A. were directors of a company established to market, inter alia, Kanavape, an electronic cigarette that contained an e-liquid consisting of a solution of CBD. That company imported into France CBD extracted from entire cannabis plants grown in the Czech Republic. Paragraphs 13 to 15 of the Opinion of Tanchev AG (EU:C:2020:383) record that, following an information campaign to launch Kanavape, the public prosecutor attached to the Tribunal de grande instance de Marseille opened a criminal inquiry. This led the Tribunal correctionnel de Marseille to convict B.S. and C.A. for an infringement of the regulation on trade in poisonous plants, namely the import of 500 ml of e-liquid containing 5% CBD extracted from entire hemp plants. Following an analysis of that liquid by the Agence nationale de sécurité du médicament et des produits de santé (National Agency for the Safety of Health Products), B.S. and C.A. were not prosecuted for the separate offence of marketing a product that contained a level of THC in excess of 0.20%.

11. B.S. and C.A. appealed their convictions to the Cour d’appel d’Aixen-Provence and submitted that the prohibition on the marketing of CBD extracted from entire cannabis plants was contrary to EU law. Paragraphs 34 to 42 of the Court’s judgment describe the order for reference. The referring court explained that CBD did not appear to have any recognised psychoactive effects and was not classified as a narcotic drug. It observed that since the CBD in Kanavape is obtained from entire cannabis plants, which include leaves and flowers, French law had the effect of prohibiting it from being marketed in France. The referring court questioned the compatibility of that prohibition with EU law, in particular since cannabis plants could be marketed lawfully in other Member States provided the level of THC in those plants was below 0.2%. It also took the view that Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No. 637/2008 and Council Regulation (EC) No. 73/2009 (OJEU 2013 L 347, p. 608, hereafter ‘Regulation No.

1307/2013’) and Regulation (EU) No. 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No. 922/72, (EEC) No. 234/79, (EC) No. 1037/2001 and (EC) No. 1234/2007 (OJEU 2013 L 347, p. 671, hereafter ‘Regulation No. 1308/2013’) applied to hemp. In those circumstances, the Cour d’appel d’Aix-en-Provence referred a question for a preliminary ruling in which it asked the Court of Justice whether a prohibition on the marketing of CBD extracted from entire cannabis plants, and not solely from its fibre and seeds, was contrary to Regulations Nos. 1307/2013 and 1308/2013 and the free movement of goods.

12. B.S.’s representatives invited the Court of Justice to expand the scope of the referring court’s question. Tanchev AG dismissed that submission, stating at para. 23 of his Opinion that:

In B. S.’s view, the Court should assess compatibility with EU law, not only of the prohibition on the marketing of hemp leaves and flowers, but also of three other requirements the French legislation imposes on the marketing of hemp, which are, first, the fact that the plant in question should belong to certain, exhaustively listed, varieties of Cannabis sativa L., secondly, that the THC content of the plant should not exceed 0.20% and, thirdly, that the THC content of the finished product should be zero. However, the Court should not, in my view, carry out such an assessment. The question whether the latter three requirements are compatible with Articles

34 and 36 TFEU has no relevance to the subject matter of the main proceedings, since, according to the national court, B. S. and C. A.

were convicted of an offence ‘due to the use in the manufacture of the product at issue of the whole hemp plant, including the leaves and flowers’, not because the CBD oil used was extracted from a hemp variety not covered by the Decree of 22 August 1990 or because the THC content of the oil, although below 0.20%, was not zero.

13. It is clear from both para. 45 of its judgment, where it reformulated the referring court’s question as asking whether Regulations Nos. 1307/2013 and 1308/2013 and Arts. 34 and 36 TFEU must be interpreted as precluding national legislation to the extent that it prohibits the marketing of CBD lawfully produced in another Member State when it is extracted from the cannabis plant in its entirety and not solely from its fibre and seeds, and the answer it gave to the referring court’s question as set out at para. 97 of its judgment, reproduced at para. 24, below, that the Court of Justice followed the Advocate General’s Opinion on that issue by ruling that Arts. 34 and 36 TFEU preclude national law that prohibits the marketing of CBD lawfully produced in another Member State when it is extracted from entire cannabis plants and not solely from its fibre and seeds, unless that legislation is appropriate to attain the objective of protecting public health and does not go beyond what is necessary for that purpose.

14. For that reason alone, I affirm the finding at para. 40 of the first judgment whereby the learned trial judge dismissed the proposition advanced on the appellant’s behalf that the Kanavape judgment had ruled upon the THC content of a product, as distinct from the THC content of the plants from which that product was extracted. In her written submissions in this appeal the appellant asserts that the High Court’s finding on that issue is correct. She now through her Counsel apparently accepts that what lies at the heart of this appeal is the THC content of the cannabis plants from which the CBD in the oils in her possession had been extracted. As para. 8, above, observes, that argument is made in the absence of any evidence as to the proportion of THC in those plants.

15. Apparently without prejudice to this change in stance, before this Court, Counsel for the appellant laid great emphasis upon the frequent references to “the CBD at issue in the main proceedings” in Kanavape to support an argument that, notwithstanding the foregoing, the Court of Justice had in fact addressed its mind to the content of the product that B.S. and C.A. had sought to market, which the order for reference described as having contained less than 0.20% of THC, without an indication of the percentage of THC in that product. At the very least, he contended, the frequent references to “the CBD at issue in the main proceedings”, juxtaposed with the multiple standalone references to CBD in the text, indicated that the Court of Justice was so uncertain as to the nature of the product, the subject of the proceedings before the referring court, as to give rise to a necessity for this Court to make a reference under Art. 267 TFEU to enable the Court of Justice to clarify what it had decided in Kanavape.

16. The response to that submission is in two parts. First, the text of Kanavape provides no support for it. Second, it is predicated upon a misunderstanding of the respective roles of the Court of Justice and national courts in Art. 267 TFEU references for preliminary ruling.

17. On the first issue, it is clear that the Court of Justice’s judgment focusses upon whether Arts. 34 and 36 TFEU applied to the CBD, not to the e-liquid, that was contained in the Kanavape product. Paragraph 29 of the judgment refers to “[t]he CBD used in Kanavape”; the referring court’s detailed explanations at para. 34 of the judgment refer to CBD; para. 35 speaks of “the CBD present in the Kanavape”; the Court’s reformulation of the question at paras. 44 and 45 refers to a prohibition on the marketing of CBD when it is extracted from entire cannabis plants; para. 58 of the judgment concludes that Regulations No. 1307/2013 and No. 1308/2013 do not apply to CBD; para. 75 finds that “since CBD does not contain a psychoactive ingredient … it would be contrary … to include it under the definition of ‘drugs’ …”; and paras.

93 to 96 refer to the marketing of CBD.

18. What, then, is this Court to make of the many references, particularly in the passages between paras. 63 and 78 of Kanavape, to “the CBD at issue in the main proceedings”, which represents a faithful translation of the judgment from the original: “le CBD en cause au principal”, and the Spanish “el CBD controvertido en el litigio principal”, and German “Ausgangsverfahren in Rede stehenden CBD”, versions? I consider that, in the same manner as those set out at para. 17, above, the references in the judgment to “the CBD at issue in the main proceedings” are to the CBD contained in the e-liquid, not to the e-liquid in the Kanavape product. The interpretation urged on the appellant’s behalf seeks to conflate the first – which, as para. 10, above, points out, made up 5% of the e-liquid in the Kanavape product – with the second. Had the Court of Justice sought to determine whether the e-liquid in the Kanavape product, as distinct from the CBD contained in that liquid, was a narcotic drug it would have done so in terms, rather than by way of elliptical references to “the CBD at issue in the main proceedings”. That

conclusion is reinforced by the observation that the referring court asked the Court of Justice a single question about the marketing of CBD, not about the sale of the e-liquid contained in the Kanavape product. The many stand-alone references to CBD throughout the judgment support that interpretation. To conclude otherwise would lead to an interpretation according to which the judgment simultaneously ruled upon two different compounds, CBD and the e-liquid in Kanavape, in circumstances where that second compound was not the object of the order for reference, as paras. 12 and 13, above, explain.

19. As for the second issue, it is well established that the Art. 267 TFEU procedure establishes a clear division of labour between national courts and the Court of Justice whereby the former alone have jurisdiction to find and to assess the facts in the cases before them and to interpret and to apply national law. It is thus exclusively a matter for the national court before which the dispute has been brought, and which must assume responsibility for the judicial decision to be made, to determine, in the light of the particular circumstances of the case, both the need for and the relevance of the questions that it submits to the Court of Justice (see, for example, Joined Cases C-698/18 and C-699/18, Raiffeisen Bank and BRD Groupe Société Générale EU:C:2020:537, para. 46). Paragraph 38 of the first judgment furnishes a sound example of the application of that principle in the context of these proceedings:

Moreover, the judgment in Kanavape, as is true of all preliminary rulings on a reference pursuant to Article 267 TFEU, involves the determination of legal issues not factual issues. The ECJ held that the schedules to the Single Convention on Narcotic Drugs were to be given a purposive, rather than a literal, interpretation. More specifically, the ECJ held that it is appropriate to take the stated objective of the Convention, i.e. the protection of the health and welfare of mankind, into account when interpreting its provisions.

The ECJ was careful to acknowledge that the application of this interpretation to the particular facts of the case was a matter for the national court, which had made the reference for a preliminary ruling, to verify. Put shortly, the ECJ left it to the French court to decide whether, as a matter of fact, the substance at issue in that case would be harmful to human health having regard to the current state of scientific knowledge. Certainly, the ECJ did not purport to make a finding of fact, of general application, that a substance which contains less than 0.2 per cent THC does not present an unacceptable risk to human health.

20. Returning to the analysis of Kanavape, in reaching the same result as its Advocate General, at paras. 46 to 58 of its judgment the Court of Justice concluded that Regulations No. 1307/2013 and No. 1308/2013 did not apply to CBD. Paragraph 17 of the High Court judgment confirms that such grounds in these proceedings as referred to those measures were not pursued before it, with the consequence that the interpretation of that legislation does not arise in this appeal.

21. The Kanavape judgment proceeded to interpret Arts. 34 and 36 TFEU. Paragraphs 59 to 62 recited, by way of preliminary, the Court of Justice’s established case-law, as articulated in Case C-137/09, Josemans EU:C:2010:774, that since narcotic drugs distributed outside strict controls are prohibited from being released into the European Union’s economic and commercial channels, persons who seek to market those products cannot rely on the freedoms of movement or the principle of non-discrimination. It therefore fell to the Court of Justice to determine whether CBD constituted a narcotic drug for the purposes of that caselaw. Relying upon the explanations and the findings of fact made by the Cour d’appel d’Aix-en-Provence, as set out at para. 34 of its judgment, the Court of Justice, examining the Single Convention in the light of the canons of interpretation of international treaties that it set out at para. 66, held at para. 72 that:

… it follows from the elements in the file before the Court, which are summarised in paragraph 34 of the present judgment, that the CBD at issue in the main proceedings does not appear to have any psychotropic effect or any harmful effect on human health on the basis of available scientific data. Moreover, according to those elements in the file, the cannabis variety from which that substance was extracted, which was grown in the Czech Republic lawfully, has a THC content not exceeding 0.2%.

22. Having concluded at para. 76 of its judgment that CBD was not a drug for the purposes of the Single Convention, the Court of Justice ruled that the prohibition on marketing CBD lawfully produced in another Member State “…when it is extracted from the Cannabis sativa plant in its entirety and not solely from its fibre and seeds…” constituted a measure having equivalent effect to a quantitative restriction within the meaning of Art. 34 TFEU. At paras. 83 to 92 of the judgment, the Court of Justice addressed possible justifications for that restriction. It concluded at para. 93 that it was a matter for the referring court to determine whether the prohibition on marketing CBD lawfully produced in another Member State – when extracted from the cannabis plant in its entirety and not solely from its fibre and seeds – is appropriate to secure the objective of protecting public health and does not go beyond what is necessary for that purpose. At paras. 94 and 95, the Court of Justice provided the referring court with certain guidance, asking it to verify if the prohibition under French law exempted marketing synthetic CBD with the same properties as CBD extracted from entire cannabis plants, in which case that restriction would not protect public health. France was not required to show that the dangers associated with CBD were identical to those posed by narcotic drugs, the Court of Justice concluding that “…it is for the referring court to assess the scientific data available and produced before it in order to make sure, in the light of the case-law cited in paragraphs 88 to 92 of the present judgment and in the light of the considerations set out in paragraph 72 of this judgment, that the real risk to public health alleged does not appear to be based on purely hypothetical considerations.”

23. These last findings make it clear that, under Art. 267 TFEU, findings as to the toxicity of a product that might pose a risk to public health are to be made by the courts of the Member States, not the Court of Justice. The procedural autonomy of Member State legal orders leave the manner by which findings to allow such a conclusion to be reached over to domestic procedural rules, provided that those rules comply with the principles of equivalence and effectiveness, in respect of which no submissions have been advanced in these proceedings. It follows that there is no basis for the argument, advanced on the appellant’s behalf in this appeal, that by analogy with the process that led the prosecution authorities in Marseille to decide not to pursue B.S. and C.A. in respect of certain offences, Kanavape imposes an obligation upon the fourth named respondent at EU law to carry out tests on the composition of products to show that they may pose a risk to public health prior to bringing any proceedings under the Act of 1977. That submission is all the more astonishing in circumstances where Ireland, together with all of the other Member States and the European Union, adheres to the various conventions adumbrated at para. 3, above, which classify THC as a “narcotic drug” and a “psychotropic substance”. As a consequence of that classification, trade in and marketing of THC does not come within the scope of Arts. 34 and 36 TFEU, as observed at para. 21 above, thereby absolving Ireland from being required to conduct an assessment prior to enforcing that prohibition.

24. At para. 97 of Kanavape, the Court of Justice answered the question posed by the Cour d’appel d’Aix-en-Provence as follows:

Articles 34 and 36 TFEU must be interpreted as precluding national legislation which prohibits the marketing of cannabidiol (CBD) lawfully produced in another Member State when it is extracted from the Cannabis sativa plant in its entirety and not solely from its fibre and seeds, unless that legislation is appropriate for securing the attainment of the objective of protecting public health and does not go beyond what is necessary for that purpose.

Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC)

No 73/2009 and Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC)

No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 must be interpreted as not applying to such legislation.

25. For the reasons set out in Part III of this judgment, nothing in Kanavape provides any basis for a declaration that the outright and absolute prohibition of all products containing minimum levels of THC in Irish law breaches the free movement of goods within the European Union or any other provisions of EU law. This observation applies equally to the other reliefs the appellant seeks herein.

IV. Appeal against the first judgment

26. The first judgment discloses that the appellant’s case before the High Court proceeded on the basis that Kanavape supported the proposition that a preparation that contained CBD and an element of THC not greater than 0.20% was entitled to the benefit of the protection that Arts. 34 and 35 TFEU affords to trade in, and the marketing of, goods within the European Union.

27. For the reasons set out at Part III, above, Kanavape does not support that proposition. That judgment concerned a provision of French law that prohibited, inter alia, the sale and marketing of compounds extracted from the parts of cannabis plants other than the seeds and fibre, in circumstances where the CBD present in the Kanavape product had been extracted from entire cannabis plants (see para. 35 of the Kanavape judgment). I am therefore unpersuaded that this Court needs to make a reference for preliminary ruling under Art. 267 TFEU to ask the Court of Justice to interpret that judgment.

28. Even were this Court to be persuaded otherwise, the appellant faces a fundamental obstacle to obtaining any of the reliefs that she seeks in these proceedings. Insofar as it is contended on her behalf that Kanavape could be interpreted so as to confer a prima facie entitlement upon her, subject to the fourth named respondent invoking Art. 36 TFEU, to market preparations that contain CBD derived from cannabis plants with a THC content no higher than 0.20%, she has adduced no evidence of the THC content of the cannabis plants from which the CBD oils that she exposed for sale had been extracted. Were this Court minded to make a declaration that reflects the Court of Justice’s reply in Kanavape she has adduced nothing to show how she might possibly benefit from the grant of that relief. In those circumstances, the appellant appears to advance a ius tertii: see A. v. Governor of Arbour Hill Prison [2006] 4 I.R. 88, at

185 – 6 per Hardiman J., by reason of which the grant of such relief would serve no useful purpose: see State (ex parte Abenglen Properties Ltd.) v. Dublin Cpn. [1984] I.R. 381.

V. Appeal against the second judgment

29. By reference to a detailed consideration of the Supreme Court

decision in Little v. Chief Appeals Officer [2024] IESC 53, the second judgment applied the approach described at paras. 68 to 71 of the judgment of Murray J. to the appellant’s case before the High Court. It concluded that none of the criteria that might justify making a costs order other than in accordance with the default position under s. 169(1) of the

Legal Services Regulation Act 2015 (hereafter ‘the Act of 2015’) applied to the appellant’s case. The learned trial judge accordingly directed that she pay the costs of the first to fifth respondents and the Director of Public Prosecutions, who was party to the proceedings in the High Court, to include all reserved costs and the costs of the written submissions, to be adjudicated upon under Part 10 of the Act of 2015 in default of agreement.

30. The appellant also appeals against this determination. Although it was not the subject of debate at the hearing, approximately one-third of a written submission of twenty-six pages was devoted to that aspect of her appeal.

31. I propose to follow the established approach of this Court (see T.A.O. v. Minister for Justice [2021] IECA 293, Collins J. at paras 30 & 51-52, applied in Pembroke Equity Partners Ltd. v. Corrigan [2022] IECA 142, Collins J. at para. 19) towards appeals against High Court costs orders that may be summarised as asking whether, on the application of the appropriate principles, the order under appeal was within the range of those that that court could make and, if so, not to disturb it.

32. I agree with the observation in the written submissions filed on behalf of the first to fifth respondents that, despite their length, the appellant’s submissions on costs do not engage with the learned trial judge’s analysis. The High Court decided to award the respondents, which included the Director of Public Prosecutions, the costs of the proceedings on the seven grounds adumbrated at paras. 15 to 25 of the second judgment. The application for judicial review was advanced on narrow, technical grounds. It neither raised a point of law of general public importance nor one that involved the determination of an issue that touched upon fundamental rights. The High Court rejected the submission that, in the light of Kanavape, there was an uncertainty in the law that required clarification. The appellant’s case was weak and, in the view of the trial judge, was predicated upon a tendentious reading of Kanavape. The proceedings were launched with the objective of protecting the appellant’s business interests. The existence of other proceedings that raised similar issues could not overcome the failure to meet any of the other criteria that might justify making a nil costs order. Even had the appellant met the public interest litigation costs test in Little v. Chief Appeals Officer, she would have been fixed with the Director of Public Prosecutions’ costs since she abandoned the proceedings against her on the day of the High Court hearing. Finally, there was no evidence on affidavit before the High Court upon which it could be held that the appellant would suffer financial hardship as a consequence of a costs order being made against her. I find these reasons are clear and convincing, such that I consider that the costs order that the High Court made was well within the range of the orders that it was entitled to make.

VI. Conclusion

33. I accordingly propose to dismiss the appeal and to affirm both of the judgments delivered, and the order made, by the High Court.

34. The default position under s. 169(1) of the Act of 2015 is that a party that has been entirely successful in proceedings is entitled to an award of costs against the unsuccessful party unless the court hearing the matter orders otherwise. I am of the provisional view that the first to fifth named respondents are entitled to an order against the appellant for the costs of the proceedings before this Court, to include any reserved costs. Should the appellant disagree with that proposed order, she should cause to have filed and served a written submission of not more than 2,000 words within fourteen days of the delivery of this judgment, after which the first to fifth respondents will have a further fourteen days in which to respond by the lodgment and service of a reply of no greater length.

35. Since this judgment is delivered electronically, I am authorised by the President and Hyland J. to state that they agree with it and with the orders proposed therein.

Appearances:

For the Appellant: Derek Shortall SC and Stephen T. Faulkner, instructed by Mulholland Law, Solicitors

For the first to fifth named Respondents: William Abrahamson SC and Frank Kennedy, instructed by the Chief State Solicitor