Affidavit Cross‑Examination in Judicial Review Requires a Material, Necessity‑Linked Factual Conflict: CSNA Company Ltd v Minister for Health [2025] IEHC 594

Introduction

This High Court judgment (Rory Mulcahy J, 4 November 2025) arises in the judicial review proceedings brought by CSNA Company Limited by Guarantee (an association representing independent retailers and newsagents) against the Minister for Health, Ireland, and the Attorney General. The underlying challenge targets the Public Health (Tobacco Products and Nicotine Inhaling Products) Act 2023 (Fees) Regulations 2024, which set licensing fees for selling tobacco and nicotine inhaling products at €1,000 (tobacco), €800 (nicotine inhaling products), and €1,800 (both), with equivalent fees on renewal. The fees are due to commence on 2 February 2026.

The applicant alleges that the Minister acted ultra vires section 18 of the 2023 Act, including that the fees were set for an impermissible purpose (disincentivising sales) rather than cost recovery, and that the amounts are arbitrary, irrational, and disproportionately impact smaller retailers, who cannot pass the cost to consumers due to legally fixed retail prices for tobacco.

This judgment does not decide the merits of those grounds. It addresses only a procedural question: whether the applicant may cross‑examine the Department of Health official (Ms Claire Gordon, Principal Officer) who swore the affidavit verifying the respondents’ Statement of Opposition. CSNA sought to cross‑examine chiefly to probe the alleged lack of “evidential or methodological basis” for the fee levels. The Court refused leave to cross‑examine.

The core issue: when, in judicial review, will the Court permit cross‑examination on affidavit? The Court holds that cross‑examination will be allowed only where there is a material conflict of fact whose resolution is necessary to determine the proceedings. Mere disagreement with, non‑acceptance of, or a desire to elaborate or “understand” the methodology behind an affidavit does not suffice; nor will the Court permit a fishing expedition.

Summary of the Judgment

• The Court refused the applicant’s motion to cross‑examine Ms Gordon.
• There is no material factual conflict whose resolution is necessary to determine the judicial review. The lawfulness of the Minister’s regulations will turn on legal questions, on an undisputed factual record.
• The applicant did not file a replying affidavit contradicting Ms Gordon’s account, nor did it point to discrepancies between her affidavit and documentary material (as in Somague). Mere assertions that the fees were “plucked out of the air,” or a desire to understand methodology, do not create a factual conflict.
• Reliance was placed on authoritative principles: Delany & McGrath (Civil Procedure), Somague Engenharia SA v TII, Hegarty v Commissioner of An Garda Síochána, and RAS Medical Ltd v RCSI.
• The Court emphasised that while applicants cannot use cross‑examination to fish for new grounds, respondents are reciprocally confined to the evidence they have put forward and cannot later defend the regulations by reference to unspecified factual material.
• Costs of the application are reserved to the full hearing, listed for 18 November 2025.

Analysis

1) Precedents and Authorities Cited

The judgment synthesises and applies the established Irish approach to cross‑examination on affidavit in judicial review, drawing on a textbook statement and three key authorities.

• Delany & McGrath, Civil Procedure (5th ed., 2023) paras 21.118 and 21.123
  The Court adopts the textbook summary that:
  • Leave to cross‑examine will be granted only where there is a conflict of fact on the affidavits that must be resolved to determine the proceedings.
  • The party seeking cross‑examination should have filed an affidavit challenging the accuracy of the points in issue.
  • Cross‑examination will not be ordered to fill gaps, to inquire into matters not addressed in the affidavit, or to pursue speculative or irrelevant lines.
  These propositions frame the threshold: necessity, materiality, and genuine factual conflict.
• Somague Engenharia SA v Transport Infrastructure Ireland [2015] IEHC 723
  Baker J’s decision is acknowledged for permitting cross‑examination in a procurement context where evaluators’ notes (disclosed) raised a live issue whether the correct criteria were applied—a point not addressed on affidavit. The Court reiterates that cross‑examination can sometimes extend to testing interpretations or conclusions drawn from facts. However, Somague is distinguished: it involved a demonstrable inconsistency between evidence and documents which the respondent had failed to address, requiring clarification. In CSNA, by contrast, there is no such documentary inconsistency and no replying affidavit putting contradictory facts before the Court.
• Hegarty v Commissioner of An Garda Síochána [2021] IECA 398
  The Court of Appeal stresses that cross‑examination in judicial review is relatively rare, because JR is primarily concerned with legality rather than factual disputes. Mere non‑acceptance of affidavit evidence is insufficient; there must be a genuine, material dispute of fact, and cross‑examination will generally be allowed only where resolving that conflict is essential to the legal determination. Mulcahy J treats Hegarty as “dispositive” of the present application: the applicant offered no alternative facts, no contradiction, and no necessity.
• RAS Medical Ltd v Royal College of Surgeons in Ireland [2019] IESC 4; [2019] 1 IR 63
  Cited for the principle that where there is a conflict of fact that must be resolved to decide a JR, cross‑examination is appropriate and indeed necessary. The Court aligns with RAS Medical but finds the precondition unmet on the instant facts.

2) The Court’s Legal Reasoning

The Court’s analysis proceeds from the nature of judicial review: the focus is on legality, not on re‑weighing factual or policy judgments, and not on fact‑finding unless a necessary material conflict exists on the affidavit record.

• No material factual conflict
  The applicant’s Statement of Grounds alleges that the fees were fixed “without any evidential or methodological basis.” However:
  • The respondents’ affidavit sets out the policy and legislative background, the factors considered, the process, and exhibits the briefing to the Minister.
  • Crucially, the respondents plead that the Minister had regard inter alia to a policy of disincentivising retailers from selling tobacco and nicotine products—consistent with public health goals and international obligations—and to evidence from other jurisdictions about the effect of licence fees on retailer participation.
  • The applicant did not swear a replying affidavit contradicting these averments, did not identify documentary inconsistencies, and did not propose alternative facts.
  On that footing, there is no factual dispute to resolve. Whether it was lawful to consider “disincentivisation” is a question of law to be resolved on the undisputed record.
• Somague distinguished; no entitlement to explanatory cross‑examination
  The applicant framed its application as a need to “understand” methodology: what was taken into account, what weight was given, and how the figures were reached. The Court holds that this is not a basis to cross‑examine. Somague does not support cross‑examination for explanation in the absence of a contradiction or lacuna that must be resolved; it involved an unresolved discrepancy between the affidavit and disclosed notes. Here, there is no such discrepancy.
• No “fishing expedition” to discover new grounds
  Echoing Delany & McGrath and Hegarty, the Court refuses to allow cross‑examination to fill gaps or search for new complaints. Cross‑examination is not a device to elicit evidence for later deployment at a substantive hearing where the applicant has not put forward contradictory evidence.
• “Weight” of considerations is not justiciable in this way
  The applicant argued in oral submissions that it wished to probe the weight given to various factors in Ms Gordon’s recommendation. The Court notes that:
  • This is not pleaded; the pleaded case is that the Minister considered an irrelevant purpose (disincentivising retailers) and failed to consider certain relevant considerations (economic impacts where retail prices are fixed).
  • In any event, the allocation of weight among relevant considerations is quintessentially for the decision‑maker. Courts will intervene where irrelevant considerations are taken into account or relevant ones are ignored, or where the outcome is irrational/unreasonable, but not to second‑guess the balance struck among relevant factors.
• Fairness and confining both sides to the affidavit record
  While refusing cross‑examination, the Court emphasises that the respondents are equally confined to their own evidence as to what occurred and may not later rely on unspecified factual matter to justify reasonableness. This mutual constraint mitigates any unfairness and reinforces a record‑based adjudication at the substantive hearing.

3) Likely Impact and Significance

Although this is a procedural ruling, it has practical consequences for judicial review litigation, particularly challenges to regulatory fees and policy‑laden statutory instruments.

• JR practice: reaffirmed threshold for cross‑examination
  The decision sharply delineates when cross‑examination will be allowed:
  • Applicants must identify a material factual conflict on the affidavits, supported by a replying affidavit or documentary contradiction, and show that resolving that conflict is necessary to decide the case.
  • Cross‑examination will not be granted to obtain explanations of methodology, to explore the “weight” of factors, or to fish for new grounds.
  This will likely streamline JR procedure and discourage speculative motions for cross‑examination.
• Record‑based review and strategic implications
  Respondents will be encouraged to provide sufficiently detailed affidavits and to exhibit core documents (such as briefing notes), knowing they will be held to that evidential record. Applicants, in turn, should:
  • File replying affidavits if they intend to challenge factual averments.
  • Point to documentary inconsistencies if seeking cross‑examination.
  • Frame challenges in legal terms (e.g., ultra vires, relevant/irrelevant considerations) rather than seeking to re‑weigh policy judgments.
• Substantive merits: preview of the key legal questions
  While not decided here, the Court notes that the respondents’ pleaded position includes reliance on disincentivising retailer participation as a policy consideration when setting fees. The upcoming hearing will likely determine:
  • Whether section 18 of the 2023 Act authorises fees for purposes beyond cost recovery (e.g., public health disincentives), or whether such fees would constitute an impermissible tax/disguised duty or the pursuit of an irrelevant consideration.
  • Whether, if disincentivisation is a permissible purpose, the specific fee levels are lawful having regard to rationality and proportionality doctrines, and the pleaded impacts on smaller retailers and on the right to earn a livelihood.
  This procedural ruling ensures those legal questions will be resolved on an undisputed factual foundation.
• Limits on justiciability of “weighting”
  The Court underscores a key administrative law boundary: courts assess whether relevant/irrelevant considerations were taken into account and whether decisions are unreasonable/irrational, but they do not recalibrate the weight assigned to competing, relevant considerations. This is especially salient in polycentric, public‑health‑driven fee‑setting.

Complex Concepts Simplified

• Judicial review vs. merits
  Judicial review asks whether the decision was made lawfully (proper power, proper purpose, fair procedures, rationality), not whether the Court agrees with the outcome or would have decided differently.
• Cross‑examination on affidavit
  In affidavit‑based proceedings like JR, cross‑examination is exceptional and requires leave of the Court (Order 40, rule 1 RSC). It is allowed only if there is a necessary, material factual conflict that must be resolved to decide the case.
• Material factual conflict
  A real disagreement in the evidence on a point of fact that matters to the legal outcome (e.g., opposing versions of what happened), supported by sworn affidavits or documents—not simply a bald assertion of disbelief.
• Fishing expedition
  An attempt to use cross‑examination to trawl for new facts or new grounds not already raised or supported by evidence. Courts disallow this.
• Relevant vs. irrelevant considerations
  Decision‑makers must consider factors the law requires and ignore factors it forbids. If they err in this way, courts can quash the decision. But where only relevant factors are considered, assigning weight among them is for the decision‑maker unless the decision is irrational.
• Ultra vires
  Acting beyond the legal powers conferred by statute. Here, the applicant says the Minister used section 18 to pursue an impermissible purpose (disincentivising retail supply), rather than to recover administrative costs.
• Disguised tax/excise
  A fee that functions in substance as a tax or duty, rather than a permitted fee under the statute, may be unlawful if not authorised by the Oireachtas. This is one of the applicant’s merits arguments, not resolved in this judgment.

Conclusion

CSNA Company Ltd v Minister for Health reinforces a disciplined threshold for cross‑examination on affidavit in judicial review: it will be permitted only where there is a genuine, material conflict of fact whose resolution is necessary to decide the case. The Court distinguishes situations—like Somague—where documentary inconsistencies require testing on oath, from cases—like this one—where the dispute is legal and the facts material to the legal question are undisputed.

Applicants cannot secure cross‑examination simply by voicing disbelief, a desire to understand “methodology,” or an interest in how much “weight” the decision‑maker gave to various factors. Conversely, respondents are bound by their own affidavit record in defending their decisions. The ruling preserves the integrity and efficiency of JR as a legality‑focused, record‑based process and foreshadows a substantive hearing centered on statutory purpose under section 18 of the 2023 Act—specifically, whether it permits fee‑setting for public‑health disincentivisation, or is confined to cost recovery.

Key takeaway: in judicial review of policy‑laden regulatory fees, parties should expect the Court to decide legality on the existing affidavits and documents. Cross‑examination remains an exceptional tool reserved for resolving necessary, material factual disputes supported by contradictory sworn evidence or palpable documentary inconsistencies.