High Court dismisses application to cross-examine witness as no factual dispute exists for judicial review.

APPROVED [2025] IEHC 594

THE HIGH COURT

JUDICIAL REVIEW

Record No.: 2025/344JR

BETWEEN:

CSNA COMPANY LIMITED BY GUARANTEE

Applicant -and- MINISTER FOR HEALTH, IRELAND and THE ATTORNEY GENERAL

Respondents

Judgment of Mr Justice Rory Mulcahy delivered on 4 November 2025

Introduction

1. In these proceedings, the applicant challenges a statutory instrument, introduced by the first respondent (“the Minister”), which sets the fees for licences to sell tobacco and nicotine inhaling products. This judgment, however, concerns only the applicant’s application to cross-examine the deponent of the affidavit verifying the respondents’ Statement of Opposition.

2. For the reasons set out below I have concluded that there is no factual dispute between the parties the resolution of which is necessary for the disposal of these proceedings. In those circumstances, I decline to direct the cross examination sought.

NO REDACTION REQUIRED The applicant’s case

3. In its Statement of Grounds, the applicant describes itself as a company that represents the interests of retailers and newsagents, independent shops and franchisees. It has approximately 1350 members across 1500 stores. In submissions on behalf of the applicant, counsel made clear that the applicant does not promote the sale of tobacco products, its only concern in these proceedings is with what it contends was the unlawful manner in which the Minister fixed the fee payable for a licence to sell such products and which it says will have a hugely negative economic effect on its members.

4. Under the existing regime any person who wishes to sell tobacco is required to register to do so in accordance with section 37 of the Public Health (Tobacco) Act 2002, as amended.

A once-off fee of €50 is payable in respect of such registration.

5. A new system for licensing the sale of tobacco and nicotine inhaling products has been introduced by the Public Health (Tobacco Products and Nicotine Inhaling Products) Act 2023 (“the 2023 Act”). Under the 2023 Act, any person wishing to sell tobacco or nicotine inhaling products is required to apply to the Health Service Executive (HSE) for a licence.

Section 18 of the 2023 Act confers power on the Minister to prescribe fees for the purposes of an application for a new licence, for renewal of a licence, and for a replacement licence.

Those fees are recoverable by the HSE as a contract debt.

6. In exercise of that power, the Minister made the Public Health (Tobacco Products and Nicotine Inhaling Products) Act 2023 (Fees) Regulations 2024 (“the 2024 Regulations”).

The following fees were prescribed:

• A fee of €1000 for an application for a licence to sell tobacco products;

• A fee of €800 for an application for a licence to sell nicotine inhaling products;

• A fee of €1800 for an application for a licence to sell both.

7. The same fees were fixed for applications to renew licences. The 2024 regulations will come into operation on 2 February 2026.

8. The applicant issued proceedings on 13 March 2025 and obtained leave to apply for judicial review on 27 May 2025. Its Statement of Grounds is admirably concise. It seeks only one substantive relief, an order quashing the 2024 Regulations. The Statement sets out some relevant background, noting a fact which is not disputed by the respondents, that on account of the manner in which excise duty is charged on tobacco products, retailers have no discretion regarding the price they charge for tobacco products – they are not permitted to charge less or more than the mandated price. Thus the cost of any licence cannot be passed on to consumers.

9. There are seven grounds of challenge which, for convenience, can be set out in full:

i. The First Respondent acted unlawfully and ultra vires the Act by disregarding the lawful purpose of section 18 when enacting the 2024 SI. The effect of the fees prescribed by the 2024 SI for licences and the renewal of licences is to impose an initial and recurring lump sum excise duty on retailers selling these products, regardless of the size of the retailer. The lawful purpose of the First Respondent's power to set licence fees pursuant to section 18 is to provide for the costs to the State and the HSE of administering and enforcing the licensing system in relation to the sale of products covered by the Act.

ii. The First Respondent acted unlawfully and ultra vires the Act by disregarding the purpose of section 18 of the Act and then unreasonably and irrationally promulgating the 2024 SI which could never achieve that unlawful purpose. In particular, the First Respondent unlawfully intended to impose the equivalent of an additional tax or duty upon the sale of products covered by the Act to disincentivise their consumption, yet failed to acknowledge that the 2024 SI could make no difference to the retail price of the products concerned and, therefore, could not disincentivise their overall consumption.

iii. The First Respondent acted unreasonably and irrationally when setting the license and renewal fees in the 2024 SI. In doing so, the First Respondent set the fees in a manner that was arbitrary and capricious and without any evidential or methodological basis or connection to the licensing regime being established.

iv. The First Respondent acted unreasonably and irrationally by making an arbitrary distinction between the licence and renewal fee for the sale of tobacco products and nicotine inhaling products without any basis for that arbitrary distinction.

v. The First Respondent failed to take account of relevant considerations when setting the licence and renewal fees In the 2024 SI, by falling to acknowledge the fact that the Applicant's members are required to sell tobacco products at a fixed price determined by law.

vi. The First Respondent acted unlawfully and ultra vires the Act by enacting the 2024 SI, which will have a disproportionate economic impact on smaller retailers compared to larger retailers which amounts to an arbitrary and capricious distinction not authorised by the Act. The effect of the 2024 SI will cause consumers to attend larger retailers instead of smaller retailers and will likely cause the closure of retailers which is not a lawful purpose envisioned by the Act.

vii. The First Respondent acted unlawfully and ultra vires the Act by enacting the 2024 SI, which will have a disproportionate economic impact on the Applicant's members right to earn a livelihood and, in particular, in relation to smaller retailers who are less able to absorb the exorbitant increase in costs.

10. CSNA’s primary argument, therefore, is that it was not permissible for the Minister to fix fees other than for the purpose provided by the 2023 Act. It contends that this purpose was to, in effect, cover the State’s costs in administering and enforcing the new licensing regime.

11. The focus of the application to cross-examine, however, was the plea at (iii) above, that the fees set were arbitrary and capricious and were fixed without any evidential or methodological basis.

12. The Statement of Grounds is verified by an affidavit of Mr Vincent Jennings, the CEO of the applicant. He sets out the applicant’s attempts to engage with the first respondent. He avers that the applicant has “no idea how the Minister for Health calculated the sums contained in the 2024 SI, or what methodology he used if any… It is hard not to draw the inference that these exorbitant figures were simply plucked out of the air and are inherently arbitrary.”

13. The respondents filed a detailed Statement of Opposition in which they denied the applicant’s claims and, in particular, denied that the Minister acted unreasonably in making the 2024 Regulations, or that he acted arbitrarily or capriciously or without any evidential or methodological basis in so doing. The Statement of Opposition expressly pleads that the Minister had regard to a number of factors, including the policy background to the 2023 Act.

Those factors included:

“e. A policy which seeks to disincentivise retailers from selling tobacco products and nicotine inhaling products and thus, reduce the availability and possibly the amount of consumption of these products by the Irish population is consistent with the policies adopted by the Government of Ireland over a period of several years and the State’s international law obligations;

f. The fact that the aforesaid policies and/or the exercise of the statutory power conferred by section 18 of the 2023 Act were underpinned by evidence and/or studies from other jurisdictions, which reflect that charging a certain level of licence fee would disincentivise retailers from selling tobacco products and nicotine inhaling products, thus reducing the availability and/or consumption of such products.”

14. The Statement of Opposition is verified by Ms Claire Gordon, Principal Officer of the Department of Health, the individual who the applicant seeks to cross-examine. Ms Gordon’s affidavit sets out the policy and legislative background to the 2023 Act and then describes the process by which the 2024 Regulations were made. She exhibits a briefing note which she prepared for the Minister.

The application to cross-examine

15. On 31 July 2025, the applicant served a notice to cross-examine Ms Gordon on the respondents. The respondents replied by letter dated 7 August 2025 noting that the applicant was required to seek leave to cross-examine in judicial review proceedings, pursuant to Order 40, rule 1 of the Rules of the Superior Courts (“the Rules”). The respondents stated that it was not apparent why cross-examination would be required.

16. The applicant replied by letter dated 5 September 2025. The letter referred to the applicant’s plea that the licence fee was calculated without any proper methodology such that it is fundamentally arbitrary, irrational and unreasonable. It continued:

“In particular, it is necessary to understand what factual matters were taken account (or not taken account of) in calculating the licence fee and in arriving at an appropriate methodology.”

17. The letter states that there is nothing in the affidavit or the briefing note, which Ms Gordon exhibits, which explains the methodology used to calculate the licence fee and asserts that the applicant is therefore entitled to challenge Ms Gordon in relation to how the licence fees were calculated and what methodology was used to arrive at the briefing note, which was ultimately sent to and supposedly relied upon by the Minister.

18. The respondents, in a letter dated 16 September 2025, did not accept that there was any necessity for such cross-examination and accordingly the applicant issued a motion seeking leave to cross-examine, which was heard by me on 31 October 2025.

Relevant principles

19. The parties did not dispute the relevant principles, only how they should be applied.

20. Reference was made to the following passages from Delany & McGrath on Civil Procedure (5th ed., Roundhall 2023) as a summary of the correct approach:

“21.118 The general approach of the courts has been that leave to cross-examine will only be granted if there is a conflict of fact upon the affidavits that is necessary to resolve in order to determine the proceedings or the application before the court. In order for the requisite conflict to arise, it will be necessary for the party seeking crossexamination to have filed an affidavit challenging the accuracy of the matters upon which cross-examination is sought.

…

21.123 Cross-examination will not be ordered so that the deponent can be crossexamined as to factual matters that are not addressed in his or her affidavit or issues that are unsustainable, speculative or irrelevant. Neither can cross-examination be used in an attempt to fill in gaps in information or to depose the deponent to obtain evidence for later use at trial.”

21. Both parties’ written submissions refer to the summary of applicable principles in Somague Engenharia SA v Transport Infrastructure Ireland [2015] IEHC 723 (at [17]):

“a. Cross-examination will be permitted if there are material conflicts of fact apparent from affidavits.

b. Cross-examination may be required in order to allow a judge to resolve that material conflict.

c. The court should tend towards permitting cross-examination but d. The discretion must nonetheless be exercised only if cross-examination is necessary for disposing of the issues e. There may be examined not merely facts taken in the narrow sense but also the construction, or interpretation, or conclusions that a person draws from those facts, and cross-examination may be permitted in those circumstances even if there is no real dispute as to those material facts.

f. Thus opinions and conclusions may be tested by cross-examination both as to their reliability or reasonableness as the case may be.”

22. The respondents refer to Hegarty v The Commissioner of An Garda Siochána [2021] IECA 398 as an example of when cross-examination is not appropriate, a case which they describe as “dispositive” of this application:

“34. Cross-examination in applications for judicial review is relatively rare. This is because judicial review is concerned with issues of pure law arising in the process under challenge, rather than the resolution of factual disputes between the parties. It is for that reason that cross-examination is unusual in such cases, rather than because special rules apply to judicial review. As in any adversarial litigation, it is for the claimant to allege facts which are said to give rise to an entitlement to the remedy sought.

35. To the extent that the public body concerned may dispute the facts alleged by an applicant for judicial review, if the court cannot adjudicate on the question of law raised without first resolving the dispute of fact, then cross-examination may not only be appropriate but essential. There must however be a genuine dispute of fact arising. It is not sufficient for the applicant to merely swear that he or she does not accept a particular state of affairs without putting alternative facts before the court which the applicant says are the true facts.

36. Mere denial or non-acceptance of facts deposed to by a respondent cannot, without more, give rise to a right to cross-examine. Were that to be the position, there would be cross-examination in virtually every case. Even if there is a genuine dispute on the facts in the sense of opposing versions of events being advanced by the parties, cross-examination will in general only be permitted where the resolution of that conflict is essential to the determination of the legal issues that arise.”

Arguments

23. As is clear from the pleadings, the applicant’s case is that the Minister was not permitted to make regulations setting fees for any purpose other than meeting the costs of the licensing regime. It argues in the alternative that the Minister could not make regulations for the purpose of disincentivising retailers from selling tobacco products, as that was ultra vires the power conferred on him by the 2023 Act.

24. In making that claim, the applicant expressly pleads that the Minister had no evidence or methodology when setting the fees. The applicant’s CEO has averred to his belief, or supposition, that this was so. In circumstances where the respondents have, in reply, averred that there was a methodology, the applicant says that there is a dispute of fact. In light of the

decision in RAS Medical Ltd v Royal College of Surgeons Ireland [2019] 1 IR 63, [2019] IESC 4, the applicant says that it is obliged to cross-examine Ms Gordon if it wishes to have this conflict of fact resolved in its favour.

25. The applicant relies, in particular, on the decision in Somague, which it argues, is analogous to this case. Somague was a public procurement case in which the notes of the person evaluating the relevant tenders had been disclosed. The applicants claimed that there was a discrepancy between those notes and the relevant evaluation criteria such that an issue arose as to what evaluation criteria had, in fact, been applied. Baker J found that this had not been addressed by the respondent on affidavit, and, in those circumstances, she directed cross-examination. The applicant here argues that, similarly, it wishes to understand how Ms Gordon prepared the briefing note and the factors she took into consideration.

26. The respondents say that there is no conflict of fact requiring resolution. They have set out the matters to which regard was had in making the 2024 Regulations, and the process by which they were made. The lawfulness of the Minister’s actions stands or falls by reference to that evidence. The applicant has not identified any basis for disputing Ms Gordon’s account of events, and it is not sufficient to identify a purported conflict of fact such as to ground an entitlement to cross-examine a person on their affidavit by merely refusing to accept that affidavit evidence. Still less is it permissible to seek to cross-examine a deponent in the hope of identifying some new cause for complaint, in effect, a fishing expedition. The respondents contend that the application here is of the same type rejected by the Court of Appeal in Hegarty.

Discussion

27. Where there is a conflict of fact which requires to be resolved for the purpose of determining judicial review proceedings, then cross-examination is appropriate, and indeed necessary, as RAS Medical makes clear.

28. The question, therefore, is whether there is a conflict of fact which requires to be resolved in order to determine the applicant’s case that the Minister acted unlawfully in making the 2024 Regulations. It is clear that there is no such conflict here and that the lawfulness of the Minister’s actions can be tested on the basis of the undisputed evidence available.

29. As Noonan J discussed in Hegarty, it is not open to an applicant in judicial review to seek cross-examination based on a purported conflict of fact by simply rejecting the evidence of the decision-maker. It is not permissible for this applicant, therefore, to seek to cross-examine Ms Gordon on her affidavit evidence as to the process which led to the making of the Regulations by simply asserting that they don’t accept Ms Gordon’s description of that process. The applicant has not provided any basis for disputing what Ms Gordon has averred; it has not even sworn an affidavit in reply to Ms Gordon’s affidavit. There is no purported discrepancy between her sworn evidence and discovery, or other, documentation, as in Somague. The applicant can challenge the adequacy or lawfulness of the process which Ms Gordon describes, but is not permitted to cross-examine her without identifying matters which potentially contradict her version of events.

30. In truth, the applicant falls short even of rejecting (or not accepting) Ms Gordon’s evidence. Rather, what they seek is an opportunity to interrogate Ms Gordon for the purpose of having her explain her evidence. There is no principle identified by the applicant which suggests such an entitlement and I cannot see what purpose it might serve here.

31. The respondents’ evidence – and pleaded position – is clear. In fixing the licence fees at the rates that he did, the Minister had regard to the fact that such fees might have the effect of disincentivising retailers from selling tobacco products. The applicant’s case is that that was an unlawful consideration. It says that the only purpose permitted by the 2023 Act was, in effect, that the fees charged cover the cost of the licensing regime. In the alternative, it argues that the Minister was not entitled to fix fee rates with a purpose of disincentivising retailers. Whether the applicant is correct in those arguments involves questions of law, not fact. True, they are, as with all questions of law, questions which depend on certain facts, but the essential facts are not disputed. Accordingly, there can be no necessity for crossexamination.

32. In oral submissions, the applicant sought to argue that it wished to cross-examine Ms Gordon so that it could understand the weight given by her to the various matters she considered when recommending the licence fee rates in her briefing note, and that unless it understood the weight given to each factor, it would be restricted in its ability to challenge the 2024 Regulations. There are a number of issues with this argument. First, it forms no part of the applicant’s pleaded case that inadequate weight was given to relevant considerations, rather the applicant’s case is that the Minister considered irrelevant considerations – a purpose of disincentivising retailers from selling tobacco – and failed to consider relevant considerations – the economic effect that so disincentivising them would have. Thus, there is no necessity to interrogate further the question of what weight was given to particular factors for the purpose of determining these proceedings.

33. Second, it is far from clear that the applicant could, in any event, seek to challenge the Minister’s actions on the basis that he had not weighed properly the relevant factors when fixing the licence fees. It is not the role of the court in judicial review to second guess

decision-makers, substituting its own assessment of how a discretion should be exercised.

Although a remedy clearly lies if a decision-maker has regard to irrelevant considerations or disregards relevant considerations, the applicant identified no authority suggesting a court could intervene by way of judicial review merely because a challenger wished to dispute the weight the decision-maker afforded to particular relevant considerations. The weight to be afforded to relevant criteria is quintessentially a matter for the decision-maker, in this case, the Minister.

34. None of this means that the applicant cannot challenge the Minister’s decision by reference to Ms Gordon’s evidence. Just as the applicant cannot conduct a fishing expedition and seek to look behind Ms Gordon’s evidence and ask her to explain it, in the hope of identifying some new basis for complaint, nor can the respondents go beyond their own evidence as to what actually occurred, and must defend the lawfulness of the Minister’s actions by reference to that evidence. Insofar as the applicant expresses concerns that the Minister will rely on other, unspecified, factual matters to justify the reasonableness of the 2024 Regulations, that would also be impermissible. Thus, no unfairness arises.

Conclusion

35. I refuse the application to permit the cross-examination of Ms Gordon on her affidavit.

As indicated to the parties, in circumstances where these proceedings are listed for hearing on 18 November 2025, it will be convenient to deal with the issue of costs during the course of that hearing. Accordingly, I propose reserving the question of the costs of this application to the hearing of the action.