Summary of Judgment

Factual and Procedural Background

Company A, a representative body for retailers and newsagents, brought judicial review proceedings challenging regulations made by Respondent A that prescribed licence fees for the sale of tobacco and nicotine inhaling products under the Public Health (Tobacco Products and Nicotine Inhaling Products) Act 2023 ("the 2023 Act"). The regulations at issue are the Public Health (Tobacco Products and Nicotine Inhaling Products) Act 2023 (Fees) Regulations 2024 ("the 2024 Regulations"), which prescribe fees (inter alia €1,000 for a tobacco licence, €800 for a nicotine inhaling products licence, and €1,800 for both) and are to come into operation on 2 February 2026.

Company A issued proceedings on 13 March 2025 and obtained leave to apply for judicial review on 27 May 2025. The Statement of Grounds pleads seven grounds of challenge to the 2024 Regulations, principally alleging that Respondent A acted ultra vires, unreasonably, arbitrarily and failed to take relevant considerations into account when fixing the licence fees.

The Statement of Grounds is verified by an affidavit of Declarant A, Company A's CEO. The respondents filed a detailed Statement of Opposition verified by Officer A (a Principal Officer in the Department responsible for preparing a briefing note exhibited to her affidavit). Company A sought leave to cross-examine Officer A on her affidavit evidence about how the licence fees were calculated and what methodology, if any, was used. The application to cross-examine was heard by Judge Mulcahy on 31 October 2025. Judgment refusing that application was delivered on 4 November 2025.

Legal Issues Presented

1. Whether leave should be granted for Company A to cross-examine Officer A on her affidavit verifying the respondents' Statement of Opposition.
2. Whether there exists a genuine and material dispute of fact (specifically, whether a methodology or evidential basis was used in calculating the licence fees) that is necessary to resolve by means of cross-examination in order to determine the judicial review proceedings.
3. As a contextual matter (pleaded in the proceedings but not the subject of the interlocutory application), whether Respondent A acted ultra vires or took account of irrelevant considerations when fixing the fees under section 18 of the 2023 Act. (The judgment on the cross-examination application treated such issues as legal questions dependent on undisputed facts.)

Arguments of the Parties

Company A's Arguments

• Company A contends that Respondent A fixed the licence fees for an improper purpose (effectively as an additional tax or to disincentivise retailers) rather than for the lawful purpose of covering the administration and enforcement costs of the licensing regime under section 18 of the 2023 Act.
• Company A pleads that the fees are arbitrary, capricious and unsupported by any evidential or methodological basis. Its CEO (Declarant A) avers that Company A has "no idea how the Minister for Health calculated the sums contained in the 2024 SI, or what methodology he used if any" and infers that the figures appear "plucked out of the air".
• Company A sought to cross-examine Officer A in order to discover the factual basis and methodology (if any) for the fee calculations, asserting a factual dispute because the respondents aver that a methodology and considerations were in fact relied upon.
• Company A relied upon case law (including Somague and RAS Medical) to argue that it was obliged to seek cross-examination to resolve the asserted conflict of fact.

Respondents' Arguments

• The respondents denied the allegations of arbitrariness and absence of methodology. Their Statement of Opposition and Officer A's affidavit set out the factors and process by which the 2024 Regulations were made, and exhibited a briefing note prepared for the Minister.
• The respondents submitted that there was no genuine conflict of fact requiring resolution by cross-examination: the matters relied on in support of the regulations were disclosed in the affidavit and briefing note, and Company A had not identified any specific contradiction or produced an affidavit in reply challenging Officer A's account.
• The respondents argued that cross-examination could not be used to "fill in gaps", to mount a fishing expedition, or to interrogate the deponent in the hope of eliciting additional grounds of complaint. They relied on authority (including Hegarty) that cross-examination in judicial review is unusual and only appropriate where a genuine dispute of fact is essential to determine the legal issues.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Somague Engenharia SA v Transport Infrastructure Ireland [2015] IEHC 723	Sets out that cross-examination will be permitted where material conflicts of fact appear from affidavits; cross-examination may be required to resolve such conflicts; opinions and conclusions may also be tested where relevant.	Judge Mulcahy acknowledged Somague but distinguished it: in Somague there was a disclosed discrepancy between evaluation notes and criteria, whereas here Company A had not identified any sworn contradiction between Officer A's affidavit/briefing and the documentary record. Consequently Somague did not support ordering cross-examination in this case.
Hegarty v The Commissioner of An Garda Síochána [2021] IECA 398	Explains that cross-examination in judicial review is relatively rare; it is only appropriate where a genuine dispute of fact exists which must be resolved to determine the legal question. Mere denial of facts by an applicant is insufficient; the applicant must put forward alternative facts.	Judge Mulcahy relied on the principles in Hegarty to refuse Company A's application: Company A had not placed alternative sworn facts before the court, and could not rely on mere non-acceptance of Officer A's evidence to justify cross-examination.
RAS Medical Ltd v Royal College of Surgeons in Ireland [2019] IESC 4	Establishes that where a conflict of fact must be resolved to determine judicial review proceedings, cross-examination may be necessary.	Judge Mulcahy accepted the general proposition from RAS Medical but held that its application requires a genuine conflict of fact; because no such conflict existed on the evidence here, RAS Medical did not mandate ordering cross-examination.

Court's Reasoning and Analysis

Judge Mulcahy began by identifying the narrow procedural issue before the court: whether leave should be granted to cross-examine Officer A on her affidavit verifying the respondents' Statement of Opposition. He framed the applicable principles drawn from authorities and the civil procedure text: cross-examination in judicial review is permissible where there is a material conflict of fact apparent from the affidavits and where resolving that conflict is necessary for the disposal of the proceedings; but it is not available to test matters not addressed in the affidavit, to pursue speculative or irrelevant issues, to fill gaps in information, or to embark on a fishing expedition.

Applying those principles, Judge Mulcahy examined the evidence. The respondents' affidavit and exhibited briefing note set out the process and the factors considered by Officer A and by Respondent A in recommending and making the regulations, including that the policy background contemplated that fees might disincentivise retailers from selling the products. Company A's case was that such a consideration was unlawful and/or that there was no evidential methodology for the fee figures. The judge emphasised that the essential facts underpinning the legal challenges were not in dispute: the respondents had sworn to the matters upon which they relied, and Company A had not put forward an alternative sworn account that would create a genuine conflict of fact.

Judge Mulcahy found that Company A's application sought not to contradict Officer A's account but to have her "explain" it — in particular, to identify the precise methodology used and the weight given to various factors. The judge held that asking the deponent to explain her evidence in that manner is not a proper basis for cross-examination in judicial review proceedings unless there is a discernible factual conflict that must be resolved. The applicant had not filed an affidavit in reply, nor identified any documentary discrepancy (cf. Somague) between the affidavit evidence and disclosed documents. Accordingly, there was no necessity to resolve a conflict of fact by cross-examination.

Judge Mulcahy also observed that the applicant's pleaded case principally raised questions of law (whether the Minister acted ultra vires or had regard to irrelevant considerations), and while those legal issues depend on certain facts, the material facts were undisputed. Further, the judge noted that challenging the weight a decision-maker afforded to relevant considerations is not ordinarily a proper ground for judicial review: the allocation of weight among relevant factors is typically for the decision-maker. Thus, Company A's desire to explore the "weight" given to different considerations did not justify cross-examination.

Finally, the judge stressed that permitting cross-examination on the applicant's terms would amount to an impermissible fishing expedition intended to discover new grounds of complaint. The respondents were bound to rely on the evidence they had given; Company A was not entitled to compel the deponent to expand that evidence absent an identified conflict requiring resolution.

Holding and Implications

The court refused Company A's application for leave to cross-examine Officer A on her affidavit.

Implications:

• Direct effect on the proceedings: Company A will not be permitted to cross-examine Officer A on the affidavit verifying the respondents' Statement of Opposition. The substantive judicial review will proceed on the basis of the affidavits and exhibits already filed.
• Scheduling and costs: The proceedings were listed for hearing on 18 November 2025; the court reserved the question of costs of the application to be dealt with at that hearing.
• Precedential effect: The decision applies established principles limiting cross-examination in judicial review to cases where a genuine and material dispute of fact exists that must be resolved to determine the legal issues. The judgment does not purport to set a new legal principle beyond those authorities and the court's application of them to the specific facts of this case.

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Anonymization note: All parties, witnesses and judicial officers have been referred to using generic placeholders for confidentiality consistent with the summary requirement.