Summary of Judicial Review Opinion — Judge Mulcahy (delivered 18 December 2025)
Factual and Procedural Background
The Applicant challenged the lawfulness of subordinate legislation made by the Respondent (the Minister) prescribing licence fees for the sale of tobacco and nicotine inhaling products. Under a prior statutory regime a one‑off registration fee of €50 applied. The Public Health (Tobacco Products and Nicotine Inhaling Products) Act 2023 introduced a new licensing system requiring sellers to obtain an annual licence from the Health Authority and empowered the Minister (section 18) to prescribe fees recoverable by the Health Authority as a contract debt.
The Minister made the Public Health (Tobacco Products and Nicotine Inhaling Products) Act 2023 (Fees) Regulations 2024 prescribing, inter alia, a €1,000 fee for a licence to sell tobacco products, €800 for nicotine inhaling products and €1,800 for both; renewal fees matched the initial fees and the Regulations were to come into operation on 2 February 2026.
The Applicant (a company representing retailers and newsagents) commenced judicial review proceedings on 13 March 2025 and obtained leave to apply on 27 May 2025. The Applicant challenged the Regulations on multiple grounds (seven pleaded grounds), focused principally on the lawfulness of the fee levels applicable to tobacco products.
Legal Issues Presented
- Whether the Applicant has standing to bring these proceedings challenging subordinate legislation when the Applicant itself will not pay the prescribed fees (locus standi / representative capacity / indirect impact).
- Whether the Minister acted beyond the powers conferred by section 18 of the 2023 Act by setting licence fees for an impermissible purpose (i.e. for purposes other than those contemplated by the Act).
- Whether the Regulations were ultra vires or irrational because the fees were arbitrary, capricious, lacked evidential or methodological basis, or were incapable of achieving any purported purpose.
- Whether the form of proceedings (judicial review versus plenary proceedings) was appropriate for challenging the validity of the Regulations or their economic impact.
Arguments of the Parties
Applicant's Arguments
- The Minister exceeded his statutory power under section 18 by using the fee‑setting power for a purpose other than that lawfully permitted — namely, to impose a de facto excise/tax or to disincentivise retail sales of tobacco rather than to cover administrative costs of a licensing regime.
- The fees were irrational, arbitrary and capricious; there was no evidential or methodological basis for the specific sums chosen and the figures appeared to be “plucked out of the air.”
- The Regulations would have a disproportionate economic impact on smaller retailers (adversely affecting members of the Applicant) and thus were unlawful and ultra vires.
- The Applicant sought to advance the claim in a representative capacity for its members or, alternatively, on the basis it would be indirectly affected because losses of members would reduce its membership.
Respondents' Arguments
- The Applicant lacks standing because it is not directly affected: the licence fees are payable by individual retailers, not by the Applicant as an organisation.
- Section 18 confers a broad discretion on the Minister to prescribe fees for licence applications, renewals and copies and that discretion can legitimately be exercised in furtherance of the public health objectives of the 2023 Act.
- The Minister had regard to relevant materials and policy considerations (including international obligations and comparative practice in other jurisdictions) and relied upon a briefing document which set out rationale and comparators for the proposed fee levels.
- The proceedings did not need to be dismissed as being in the wrong form (judicial review) but, where arguments are highly fact‑sensitive, plenary proceedings may be more appropriate; in any event the Respondents resisted the substantive allegations and maintained the Regulations were intra vires and rational.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Cahill v Sutton [1980] IR 269 |
Foundational test on locus standi (standing): challenger should normally be directly affected; caution against ius tertii. |
The Court treated Cahill as the applicable test on standing and concluded the Applicant did not meet the requirement of being directly affected. |
| Irish Penal Reform Trust v Governor of Mountjoy Prison [2005] IEHC 305 |
Examples of exceptional cases permitting challenges by parties not directly affected (due to incapacity of those affected). |
Court acknowledged such exceptions but found no comparable exceptional circumstances for the Applicant here. |
| Rafferty and Ors v Bus Éireann [1997] 2 IR 424 |
Authority where a representative body was described as entitled to bring an action on behalf of members (context specific). |
Court distinguished Rafferty because in that case there were plaintiffs who were directly affected; Rafferty did not support the Applicant's position here. |
| Digital Rights Ireland v Minister for Communication [2010] 3 IR 251 |
Cited among authorities on a flexible approach to standing. |
Referenced by Applicant; Court observed it did not displace the general rule requiring a direct interest under Cahill. |
| Friends of the Irish Environment v Government of Ireland [2021] 3 IR 1 |
Recent authority addressing public interest standing and limits on ius tertii. |
Cited by both sides on standing; Court held it did not undermine the rule that representative bodies ordinarily must be directly affected. |
| Mohan v Ireland [2021] 1 IR 293 ([2019] IESC 18) |
Further authority on limits to third‑party standing and the circumstances of exceptional public interest standing. |
Court noted Mohan but concluded no exceptional justification existed to allow the Applicant to proceed on behalf of members. |
| Construction Industry Federation v Dublin City Council [2005] 2 IR 496 (CIF) |
Authority where a representative body lacked standing to challenge a public authority decision affecting its members. |
Court treated CIF as analogous and persuasive: representative bodies will not ordinarily have standing where they themselves are not affected. |
| Reg. v. I.R.C.; Ex p. Fed. of Self Employed [1982] A.C. 617 & The State (Lynch) v. Cooney [1982] I.R. 337 |
Principles on the timing and manner of contesting standing (practical approach to when standing should be determined). |
Court rejected the Applicant's contention that failure to contest standing at leave stage precluded a later challenge; respondents were permitted to contest standing at the substantive hearing. |
| Lancefort Ltd v An Bord Pleanála [1999] 2 IR 270 |
Practical observations on addressing standing at leave stage (on notice). |
Court held Lancefort did not create a procedural bar to raising standing at the substantive hearing in this case. |
| SPUC v Coogan [1989] IR 734 |
Example of an exceptional case where challenges were permitted despite the litigant not being directly affected. |
Cited for the proposition that there are narrow exceptions to the direct‑interest rule; the Court found no analogous exception here. |
| East Donegal Co‑Operative Livestock Mart Ltd v Attorney General [1970] IR 317 |
Delegated powers must be exercised within statutory limits and reasonably, and by reference to objects of the Act and its general context. |
Court applied the East Donegal principle to require that section 18 be construed in context but found East Donegal did not assist the Applicant's claim here. |
| Cassidy v Minister for Industry and Commerce [1978] IR 297 |
Principles on ultra vires and unreasonableness in delegated legislation: dominant purpose within power; manifest arbitrariness test. |
Court adopted Cassidy's test for assessing whether the Regulations pursued an impermissible purpose and concluded the fees were within permissible scope. |
| Mixnam's Properties Ltd v Chertsey UDC [1964] 1 QB 214 |
Quoted in Cassidy for the standard of unreasonableness that invalidates subordinate legislation (manifest arbitrariness, injustice or partiality). |
Court relied on this formulation via Cassidy to assess whether the Regulations were manifestly arbitrary; they were not. |
| Island Ferries Teo v Minister for Communication [2015] 3 IR 637 |
Case where a ministerial charge was held to have been made for an impermissible purpose and without regard to inability to pass on costs. |
Court distinguished Island Ferries as materially different; no comparable error was identified here. |
| Doyle v An Taoiseach [1986] ILRM 693 |
Illustration of invalid delegation where a levy fell on persons other than those within the contemplated scope; used to assess impossibility of achieving purpose when cost cannot be passed on. |
Court found Doyle distinguishable: there was no evidence the Minister mistakenly thought licence fees could be passed to consumers or that the levy operated outside the intended scope. |
| DPP v Brown [2019] 2 IR 1 |
Use of legislative history as an interpretative aid. |
Court accepted legislative history as a permissible interpretative tool (cited in construing section 18) and noted that the 2002 precursor expressly limited fees to defraying expenses, whereas the 2023 Act did not. |
| Reg. v. Inspectorate of Pollution, Ex parte Greenpeace Ltd [1994] 1 W.L.R. 570 |
Example of a representative body being held to have sufficient interest to challenge administrative action. |
Court noted such cases exist but emphasised they are exceptions; no comparable justification applied here to permit the Applicant to proceed. |
| G v Ireland [2025] IESC 49; Donnelly v Minister for Social Protection [2023] 2 IR 415 ([2022] IESC 31) |
Recent authority on appropriate form of proceedings (plenary v judicial review) for challenges to primary legislation or fact‑intensive claims. |
Court observed that highly fact‑sensitive economic impact claims may be more appropriately prosecuted in plenary proceedings, but did not dismiss the judicial review on that ground alone. |
Court's Reasoning and Analysis
The Court, presided over by Judge Mulcahy, addressed standing as a threshold issue before considering the merits. The analysis proceeded in two stages: (1) standing and form of proceedings; (2) merits (if standing were assumed).
Standing
The Court applied the established test in Cahill v Sutton and subsequent authority: ordinarily a challenger must be directly affected by the impugned measure. The Applicant is a company limited by guarantee representing a diverse membership of retailers. The Court identified a number of insuperable difficulties for the Applicant's standing:
- The licence fees are payable by individual retailers (members) and not by the Applicant.
- The Applicant's pleaded claim that smaller retailers would be disproportionately affected was hypothetical and not substantiated with evidence suitable to ground representative standing. Cross‑examination of the Applicant's expert confirmed heterogeneity of effects across members.
- The Applicant sought to rely on a contention of indirect effect (loss of members), which was not pleaded or evidenced in the affidavits and was speculative; causation linking the Regulations to adverse effects on the Applicant was tenuous.
- The Court considered authority permitting exceptions for representative standing (e.g. where those directly affected cannot litigate) but found no such exceptional circumstances here; the Construction Industry Federation decision was regarded as closely analogous and weighed against the Applicant.
On this basis the Court concluded the Applicant lacked standing to maintain the grounds premised on economic impact and, more generally, lacked standing to challenge the Regulations because it was not directly affected.
Form of Proceedings
The Respondents argued that a plenary action was the correct form to challenge subordinate legislation directly. The Court considered recent Supreme Court guidance that fact‑sensitive or direct challenges to primary legislation are often more suitable for plenary proceedings. The Court concluded that, while some of the Applicant's fact‑heavy economic arguments might have been better addressed in plenary proceedings, there was no absolute bar to proceeding by way of judicial review for the legal grounds pursued and it would not dismiss the matter on form alone.
Merits (addressed for completeness)
The Court analysed the remaining legal grounds (i) that the Regulations were not for a permitted purpose, (ii) that they were for an unlawful purpose, and (iii) that they were irrational for lack of evidential basis or incapability of achieving any purported purpose.
- Construction of section 18: The Court examined the terms of section 18 and the wider Act. There was no express limitation in section 18 that fees must be calculated solely to defray administrative costs. The 2002 predecessor expressly linked fees to defraying expenses; that express restriction was absent from the 2023 Act and therefore undermined an implication to the contrary.
- Purpose and public health context: The Act's long title and subject matter indicated a public health regulatory purpose. The Court reasoned that fees set to reflect the harmful nature of tobacco products and to further public health objectives were within the contemplation of the Oireachtas and therefore within the scope of the Minister's discretion.
- Dominant purpose and subsidiarity of motives: Applying the Cassidy/Mixnam's formulation, the Court held that even if a fee might have the subsidiary effect of discouraging sales, that consequence did not render the Regulations ultra vires so long as the dominant purpose was within statutory scope. The briefing document evidenced that the Minister considered comparators and the public health rationale; thus the dominant purpose was lawful.
- Irrationality and evidential basis: The Court found the briefing document constituted evidence before the Minister, setting out comparators and rationale (including international comparators and an analogy with alcohol licensing). Consequently the fees were not made without any evidential basis. The Court rejected the Applicant's contention that the figures were simply arbitrary or “plucked out of the air.”
- Capability of achieving purpose: The Applicant argued the fees could not achieve any disincentivising effect because they could not be passed on to consumers. The Court found no evidence that the Minister proceeded under that misapprehension; moreover the possibility that the measures might not have the intended effect did not render them unlawful or irrational. The Act itself provides for a review mechanism (section 10) after 12 months to assess operation of the regime.
Holding and Implications
The Court reached the following dispositive conclusions:
Holding: The proceedings were dismissed because the Applicant lacked standing to challenge the statutory instrument and, in any event, the Regulations were lawful and within the Minister's discretion; accordingly the reliefs sought by the Applicant were refused.
Implications:
- Direct effect: The Regulations remain valid and will come into operation as prescribed; the licences and renewal fees prescribed by the 2024 Regulations are lawful.
- Standing: The decision reaffirms the general rule that representative bodies who are not themselves directly affected will not ordinarily have standing to challenge subordinate legislation on behalf of members, absent exceptional circumstances or evidence that those directly affected cannot bring proceedings.
- Merits and delegated power: The judgment indicates that where parent legislation is framed as a public health measure and confers discretion to set fees, a Minister may lawfully set fees that reflect public health objectives (subject to the usual limits on delegated powers and to the requirement that exercise of the power not be manifestly arbitrary).
- No new precedent beyond application of established principles: The Court declined to set aside the Regulations and did not find novel constraints on the Minister's fee‑setting power; the ruling applies the established tests on standing, ultra vires and irrationality to the facts of this challenge.
The Court directed that final orders be made following a short listing (the matter was to be listed for final orders on 16 January 2026).
Note on anonymization: This summary has been prepared strictly from the provided opinion and all individual names and organizational identifiers in the source have been replaced with generic role‑based references (e.g., "Applicant", "Respondent", "Judge Mulcahy", "Health Authority", "Health Department Official", "Expert for Applicant", "Expert for Respondent"). No facts beyond those in the provided opinion have been added.