About this case:

• Citation:
  [2024] IEHC 712
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Delivering judgment for the High Court, Mr Justice Garrett Simons observed: “The identification of a lead case indicates no more than that there are a number of cases raising the same or similar legal point. It is a function of the quantity of cases not of the quality of the legal point.”

Derek Shortall SC and Stephen T. Faulkner appeared for the applicant instructed by Mulholland Law, William Abrahamson SC and Frank Kennedy appeared for the first to fourth respondents instructed by the Chief State Solicitor, and James Dwyer SC and Conor McKenna appeared for the fifth respondent instructed by the Chief Prosecution Solicitor.

Background

The applicant’s case was one of a group of cases seeking to challenge domestic legislation prohibiting the sale of cannabinol derivatives.

One such case was advanced as a lead case, with the balance of the cases being adjourned to await its outcome. Judgment in the lead case, Bogusas v Minister for Health [2022] IEHC 621 was delivered in October 2022. The appeal in Bogusas was subsequently withdrawn.

The Office of the Chief State Solicitor (CSSO) wrote to the applicant’s solicitors in June 2023 calling upon her to discontinue the proceedings and indicating that if proceedings were withdrawn, the State respondents would not pursue her for legal costs.

The applicant refused and advanced her proceedings, which were heard in June 2024. Her application for judicial review was dismissed on the same reasoning as in Bogusas. 

Following the hearing of the parties’ costs applications, in which the applicant suggested that her case was now the “test” or “lead” case, the court deferred its costs ruling pending judgment in the Supreme Court case of Little v Chief Appeals Officer [2024] IESC 53.

The High Court

Mr Justice Simons considered that the legal principles governing the allocation of costs of ‘public interest proceedings’ against the State were authoritatively restated in Little.

The High Court set out the factors in Little guiding the court’s discretion to absolve an unsuccessful applicant from costs consequences, which include whether the challenge concerns the validity, legality or compatibility of an enactment, measure, act, omission or decision of a body of the State having regard to the Constitution, European law, the European Convention on Human Rights or the general principles of administrative law, and whether exceptional circumstances exist such as the issues being fundamental or touching upon sensitive aspects of the human condition, or where cases are of conspicuous novelty.

Mr Justice Simons explained that the concept of a “test case” or “lead case” is essentially a case management tool, where the hearing of one pathfinder case is expedited with all other cases in the group then adjourned generally to await its outcome.

The judge highlighted: “This is done in the expectation that the final judgment delivered in respect of the lead case will have precedential value in respect of the balance of the cases. The remaining cases can then be disposed of shortly. If, for example, the applicant in the lead case has been unsuccessful, then it is likely that the other applicants will discontinue their cases.”

Pointing out that the selection of a lead case is not an exact science and that the selection does not necessarily imply that those proceedings come within the concept of “public interest proceedings”, Mr Justice Simons emphasised: “The identification of a lead case indicates no more than that there are a number of cases raising the same or similar legal point. It is a function of the quantity of cases not of the quality of the legal point.”

Finding that the crucial question before him was whether the indicative criteria for a nil costs order had been satisfied and finding the issue of whether the proceedings constituted a lead case to be “a distraction”, the court was nonetheless prepared to assume that the applicant’s case was a lead case where the appeal in Bogusas had been withdrawn. 

The court considered that the point of law raised in the applicant’s proceedings was not one of general public importance, instead advancing the “narrow” claim that a cannabinol derivative with a specific chemical composition should not be characterised as a narcotic drug.

Mr Justice Simons further considered that the proceedings did not necessitate the determination of any issues touching upon sensitive personal rights under either the Constitution of Ireland or the European Convention on Human Rights, turning only on a technical argument as to whether a particular preparation comprised a “drug” for the purpose of the free movement of goods.

The court found that there was also no uncertainty in the law, finding it “obvious from the date of the rejection of the proposed legislative amendment to the Single Convention on Narcotic Drugs in December 2020 that the substance came within the definition of a ‘drug’ and did not benefit from the free movement of goods”.

In this regard, the court suggested that the fatal flaw in the applicant’s argument was that it ignored the consequences of the rejection of the amendment and attempted to argue a divergence between the approach in Kanavape Case C-663/18, EU:C:2020:938 and the Council of the EU as evidence in Council Decision (EU) 2021/3. 

The court pointed out that the applicant’s argument overlooked the logic that a legislative amendment has priority over earlier case law and so insofar as there might be a divergence between the two institutions, this would not create any legal uncertainty as “the legal regime is that in force following the rejection of the amendment”.

The court also considered that the case was obviously a weak one, predicated on a “tendentious reading” of Kanavape and ignoring the consequences of the rejection of the proposed amendment, and that its sole objective was to protect the applicant’s own commercial interests.

Mr Justice Simons observed that whereas the existence of a number of other proceedings raising the same legal point is a factor to be considered in determining legal costs, proceedings which fail to meet any of the criteria which might justify a nil costs order “cannot overcome this shortcoming by sheer force of numbers”.

Turning to the applicant’s conduct, the judge recounted that the Director of Public Prosecutions (DPP) had applied to be joined to the proceedings where a criminal prosecution had been initiated against the applicant, but that the applicant had abandoned the aspects of her case which had potential impact on the prosecution only on the day of the hearing, causing the DPP to incur legal costs unnecessarily.

Furthermore, the court noted that there was no mention of financial hardship in the applicant’s first set of legal submissions and that her proceedings had been taken on a “no foal, no fee” basis, and so it could not infer that legal costs would have a significant deterrent effect on the bringing of litigation by the type of person likely to be affected by the legal issues arising.

Conclusion

Accordingly, the High Court made an order awarding costs, including all reserved costs and the costs of the written legal submissions, to the State respondents and the DPP, and placed a stay on that order for 28 days from the date of perfection of the order.

Lynch v Minister for Health & Ors [2024] IEHC 712