P.J. Carroll & Co. -v- The Minister for Health and Children, [2006] IESC 36 (2006)

Docket Number:336/05 & 25/06
Party Name:P.J. Carroll & Co., The Minister for Health and Children
Judge:Geoghegan J.
 
FREE EXCERPT

THE SUPREME COURT

Appeal No. 336/2005

Appeal No. 25/2006Geoghegan J.

Fennelly J.

McCracken J.BETWEEN/

P.J. CARROLL & COMPANY LIMITED,

JOHN PLAYER & SONS LIMITED, VAN NELLE (IRELAND), REEMTSMA CIGARETTENFABRIKEN GmbH, GALLAHER (DUBLIN) LIMITED, SOCIETE NATIONALE D'EXPLOITATION INDUSTRIELLE DES TABACS ET ALLUMETTES (SEITA),

GERRY LAWLOR AND CONOR FULLER

Plaintiffs/Respondents

and

THE MINISTER FOR HEALTH AND CHILDREN,

IRELAND, THE ATTORNEY GENERAL AND

THE OFFICE OF TOBACCO CONTROL

Defendants/Appellants

JUDGMENT of Mr. Justice Geoghegan delivered the 1st day of June 2006

The court has already given its decision in each of these appeals. When doing so it was indicated that the reasons would be delivered later. In each case, there was a unanimous decision to dismiss the appeal. I intend now to set out in this judgment my reasons for arriving at that conclusion.

The first appeal is an appeal against the decision of the High Court (Kelly J. sitting in the Commercial Court) to refuse an application to transfer this case out of the Commercial List again and into the ordinary list of the High Court. The second appeal is an appeal against an order of the High Court (again Kelly J. sitting in the Commercial Court) refusing an order for discovery of documents.

I would have no hesitation in dismissing the first appeal for the simple reason that it was open to the appellants to have appealed the original order admitting the case into the Commercial Court but no such appeal was brought. The State only nominally opposed that order at the time. There is no relevant change of circumstances which would now justify an application to take the case out of the Commercial List again. There may well be an inherent discretion in the judge of the Commercial Court to return a case before him to the ordinary list and, indeed, there probably is but this would not be a case where there would be any justification for doing so. I entirely agree with the view of the learned High Court judge that the complexity of the case of itself could not afford any such justification.

Having regard to the view I have taken, I do not find it necessary to consider whether as a matter of law this action correctly fell within the categories permitted to be brought into the Commercial Court under O. 63A of the Rules of the Superior Courts. In my view, it would be more desirable to postpone any detailed consideration of those rules to a case where the issue properly arises. I would be entering on a moot if I were to express views on it in this case, given my firm view that the appellant is precluded at this late stage from obtaining the order they seek. The action must be deemed to have been correctly transferred into the Commercial List.

The court did permit counsel to address us on the substantive issue. Having heard the submissions, I am satisfied that there are arguments to be made as to how those rules are to be interpreted. In short, the question arises as to whether they are to be interpreted literally or in a purposive manner? For the reasons which I have given, however, I am not expressing any view on this question.

I do have some observations to make...

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