P J Carroll & Company Ltd and Others v Minister for Health and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 29 July 2004
• Neutral Citation: [2004] IEHC 310
• Court: High Court
• Docket Number: HC 310/04
• Date: 29 July 2004

[2004] IEHC 310

THE HIGH COURT

HC 310/04

No. 4729P/2004

P J CARROLL & CO LTD & ORS v. MINISTER FOR HEALTH & ORS

COMMERICAL

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 ALUMETTES (SEITA), GERRY LAWLOR AND CONOR FULLER

PLAINTIFFS

AND

THE MINISTER FOR HEALTH AND CHILDREN, IRELAND, THE ATTORNEY GENERAL AND THE OFFICE OF TOBACCO CONTROL

DEFENDANTS

Abstract:

Constitutional law - Practice and procedure - Evidence - Constitutional challenge to tobacco legislation - Entitlement of defendants to lead evidence as to harmful effects of tobacco - Whether waste of time and money to permit adducing of unnecessary evidence

The plaintiffs challenged the Public Health (Tobacco) Acts 2002 and 2004 and the European Communities (Manufacture, Presentation and Sale of Tobacco Products) Regulations 2003. This judgment concerned the entitlement of the defendants to lead evidence as to the nature of the product and its harmful effects to understand the necessity for regulation. The plaintiffs contended that such evidence was neither relevant nor admissible.

Held by Kelly J. that it was not open to the defendants to seek to lead evidence in respect of facts which had been admitted. It would be a waste of public time and money to permit the adducing of unnecessary evidence.

Reporter: R. W

1 JUDGMENT of Mr. Justice Kelly delivered the 29th day of July, 2004.

INTRODUCTON

2 On 18 ^th June, 2004, I made an order pursuant to the provisions of O. 63 A r. 1(b) of the Rules of the Superior Courts entering these proceedings into the commercial list. On that date I gave initial directions and they were followed by further directions, which were given on 2 ^nd July, 2004.

3 In accordance with the rules and practice of the Commercial Court, I directed each side to furnish:

4 1. the issues in respect of which evidence is to be adduced

5 2. an outline of the extent of the evidence to be adduced at trial

6 3. a list of the witnesses or type of witness to give such evidence.

7 That was duly done and this judgment relates to a dispute which arose at a further directions hearing on 9 ^th July, 2004. It concerns the entitlement of the defendants to lead evidence in support of their defence of certain constitutional questions which are raised in the proceedings. The plaintiffs contend that such evidence is neither relevant nor admissible.

THE PROCEEDINGS

8 The plaintiffs have mounted a wide ranging challenge to the Public Health (Tobacco) Acts, 2002and 2004 and to the European Communities (Manufacture, Presentation and Sale of Tobacco Products) Regulations, 2003.

9 The plaintiffs” criticism of the Acts is made on a threefold basis. First, they claim that certain provisions are unconstitutional. Secondly, they claim that certain provisions are invalid because they are in breach of European law. Thirdly, they claim that certain sections are incompatible with the State's obligations under the provisions of the European Convention on Human Rights.

10 The plaintiffs” challenge to the Regulations falls under the same three headings, but there is also a claim that in making the Regulations, the first defendant acted ultra vires and unlawfully.

11 The plaintiffs” statement of claim sets out in extensothe case which it makes under each of these three headings and runs to in excess of 50 pages.

12 The defendants” defence is equally detailed running to some 40 pages. Apart from denying the plaintiffs” claim, a considerable amount of factual material is pleaded, which in turn was the subject of a lengthy reply from the plaintiffs, which in turn led to the delivery of a rejoinder. I will have to consider these documents in some detail insofar as they contain material pertinent to my decision.

13 The issue between the parties relates to the defendants” entitlement to lead evidence on the claims of unconstitutionality made by the plaintiffs. The essence of those claims is that the legislation constitutes a disproportionate interference with the plaintiffs” constitutional rights. The defendants contend that to the extent that there has been such an interference, it is justified having regard, inter alia, to the harmful effects of tobacco on public health.

THE ISSUE:

14 In the defendants” list of indicative legal issues, dated 7 ^th July, 2004, they identify the issue which falls for determination in this judgment in the following way:-

"whether, having regard to the form of admissions made by the Plaintiffs in their Reply delivered on 29 ^th June, 2004, which are limited and specific to this case only, the Defendants can be deprived of their entitlement to adduce evidence in relation to:"

(i) the addictive nature of tobacco products;

(ii) the health effects of the direct or indirect consumption of tobacco products;

(iii) the role and effect of advertising on the sale and consumption of tobacco products;

(iv) the past conduct of the tobacco industry in relation to the acknowledgment of the dangerous and addictive nature of tobacco and in relation to Governmental attempts to regulate the sale of tobacco;

(v) the economics of the tobacco industry".

15 The defendants contend that they are entitled to adduce evidence of all of these matters despite the admissions referred to in the document from which I have just quoted.

16 It is not possible to answer these questions without reference to the pertinent part of the pleadings, which deals with the five areas set out above.

THE DEFENCE

17 Under the heading “Tobacco and its Effects” the defence reads as follows:-

18 "10. Tobacco is a naturally occurring product. The burning of tobacco releases the drug, nicotine. Nicotine has a number of neurological effects, including effects on brain dopamine reward systems similar to those of drugs such as heroin and cocaine. It is addictive. Tobacco products are intended to facilitate the delivery and ingestion of nicotine, leading to addiction. Tar and gases inhaled as part of tobacco smoke cause a variety of diseases. Addiction may therefore lead to illness and death. Cigerettes are the most common form of tobacco product in use. Cigarettes and other tobacco products, when used in the manner intended by their manufacturers, cause illness and death.

19 11. A significant number of additives are used in the manufacture of the products marketed by the corporate Plaintiffs. The tobacco products marketed by the Plaintiffs contain or are likely to contain some of the type of additives as set out in Schedule 1 to this Defence.

20 12. Smoke from tobacco products marketed by the corporate Plaintiffs is believed typically to have the chemical profile set out at Schedule 2 to this Defence.

21 13. The addiction to and consumption of tobacco products causes chronic obstructive pulmonary disease, cardiovascular diseases, several forms of cancer and is implicated in a variety of other diseases:

22 (a) Chronic obstructive pulmonary disease, in the form of chronic bronchitis and emphysema, is a major cause of disability and premature death. Approximately three quarters of deaths from this disease are attributable to smoking.

23 (b) Cardiovascular diseases include coronary artery disease and heath attacks, aortic aneurysms, which can lead to sudden death, carotid artery disease, which can lead to strokes and peripheral vascular disease which, in the lower limbs, can lead to severe pain in the leg on walking and may necessitate amputation. Evidence exists which tends to show that smoking causes more rapid expansion of aortic aneurysms.

24 (c) Evidence exists tending to show that smoking causes increased risk of cancer in several sites, pre-eminently the lung, but also several others such as the oral cavity, pharynx, larynx, oesophagus, pancreas and bladder.

25 (d) The list of other diseases known to be associated with smoking includes Type 2 or "late onset" diabetes, cataracts, hip-fracture (from osteoporosis) and periodontal disease.

26 14. The first named Defendant ("the Minister") has estimated that, in Ireland, every year approximately 7,000 people die prematurely from smoking related diseases.

27 15. Further, the inhalation of environmental tobacco smoke ("ETS") or passive smoking is a risk in the following areas:-

28 (a) Exposure to and inhalation of ETS is a cause of lung cancer and of ischaemic heart disease;

29 (b) Smoking in the presence of infants and children exposes them to ETS which is a cause of respiratory illness and asthmatic attacks. Middle ear disease in children is also linked to ETS;

30 (c) Smoking in pregnancy causes adverse outcomes, notably miscarriage, reduced birth weight for gestation;

31 (d) Smoking is a cause of perinatal death and cot deaths.

32 Evidence also exists tending to show that ETS is the single most important source of harmful indoor air pollution.

33 16. The World Health Organisation estimates that cigarettes are responsible for approximately 30% of all cancer deaths, 20% of deaths from coronary heart disease and stroke and 80% of cases of chronic obstructive lung disease. Half of all people who regularly smoke will die from diseases caused by smoking cigarettes. Of these deaths, half will occur on or before middle age, i.e. that quarter of all smokers die in middle age from diseases caused by smoking.

34 17. As a result of the increasing consciousness of the danger to public health posed by tobacco products, the Tobacco Products (Control of Advertising, Sponsorship and Sales Promotion) Act, 1978("the 1978 Act") and the Tobacco (Health Promotion and Protection) Act, 1988, ("the 1988 Act"), were enacted.

35 18. In view of the concern of the Minister that further legislative measures might be required to counter the threat...