P J Carroll & Company Ltd and Others v Minister for Health and Children and Others (No. 3)

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 22 July 2005
• Neutral Citation: [2005] IEHC 267
• Docket Number: No. 4729P/2004
• Court: High Court
• Date: 22 July 2005

[2005] IEHC 267

THE HIGH COURT

No. 4729P/2004

P J CARROLL & CO LTD & ORS v MIN FOR HEALTH & ORS

COMMERCIAL

BETWEEN

PJ CARROLL AND COMPANY LIMITED, JOHN PLAYER AND SONS LIMITED, VAN NELLE (IRELAND), REEMTSMA CIGARETTEN FABRIKEN GMBH, GALLAHER (DUBLIN) LIMITED, SOCIÈTE NATIONALE D'EXPLOITATION INDUSTIELLE DES TABACS ET ALLUMETTES (SEITA), GERRY LAWLOR AND CONOR FULLER

PLAINTIFFS

AND

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

DEFENDANTS

RSC O.63(A)

PUBLIC HEALTH (TOBACCO) ACT 2002

PUBLIC HEALTH (TOBACCO) (AMDT) ACT 2004

EUROPEAN COMMUNITIES (MANUFACTURE, PRESENTATION & SALE OF TOBACCO PRODUCTS) REGS 2003 SI 425/2003

EEC DIR 98/34

EEC DIR 98/48RSC O.63(A) r1

RSC O.63(A) r1(g)

MULHOLLAND & KINSELLA v BORD PLEANALA UNREP KELLY 14.6.2005

RSC O.63(A) r1(b)

RSC O.63(A) r6(1)(xii)

JURISDUCTION

Whether inherent jurisdiction -Case management - Pre-trial conferences - PJ Carroll & Co Ltd v Minister for Health [2005]IESC 26, [2005] 1 IR 294 considered - Rules of the Superior Courts 1986 (SI 15/1986), O63(A) - Rules of the Superior Courts(Commercial Proceedings) 2004 (SI 2/2004) -Application to transfer out of commercial list refused

Mr. Justice Kelly

1 One hundred and six cases have been permitted to enter the commercial list of this court since it was created on 12th January, 2004. No party to any of those cases has, until now, ever sought to have such a case transferred out of the list. That is the order which the defendants now seek.

2 The order is sought more than a year after the case was admitted to the list and in circumstances where extensive activity has taken place pursuant to case management directions given by the court. It is now sought to expel the case from the list. In such event the case would fall to be dealt with in the chancery list. It would cease to be governed by the provisions of order 63(A) of the Rules of the Superior Courts. Instead it would proceed without any judicial involvement save that brought about by motions which might be brought by the parties. Once set down it would appear in a list to fix dates and take its place accordingly.

3 These proceedings challenge several provisions of the Public Health (Tobacco) Act,2002, (as amended by the Public Health (Tobacco) (Amendment) Act, 2004) and the European Communities (Manufacture, Presentation and Sale of Tobacco Products) Regulations, 2003. The basis for the challenge is the alleged invalidity of these legislative measures by reference to specific provisions of the Constitution, the law of the European Union and the European Convention on Human Rights.

4 If these legislative measures are put into force there can be little doubt but that they will restrict in a manner heretofore unknown the marketing and sale of the tobacco products produced and distributed by the plaintiffs. They assert that this will have what has been described on oath as "extremely serious commercial consequences" for them. They swear that the measures will û

5 (a) make it practically impossible for the corporate plaintiffs to distribute or launch new brands on the market,

(b) prevent any competition between the corporate plaintiffs,

6 (c) prevent the corporate plaintiffs increasing their share of the existing market,

7 (d) deprive the corporate plaintiffs of the benefit of their intellectual property in their respective tobacco brands,

8 (e) force the corporate plaintiffs to provide confidential proprietary information to the fourth defendant,

9 to mention just some of the commercial consequences for the plaintiffs.

10 This is not the first time that the plaintiffs have challenged the validity of certain provisions of the Public Health (Tobacco) Act,2002. In proceedings which commenced in June, 2002, the validity of that Act and an order which had been made under it were impugned. Prior to the trial of those proceedings it was conceded by the defendants that they had failed to notify the European Commission of certain provisions of that Act as they were required to do by Directive 1998/34/EC as amended by Directive 1998/48/EC. As a consequence, an undertaking was given on behalf of the first defendant that certain sections of the Act would not be commenced in their original form. Those proceedings were struck out with costs to the plaintiffs. As a result of this failure by the relevant defendant to notify the European Commission a very substantial costs liability to the State was incurred.

11 The present proceedings were commenced on 16th April, 2004.

12 A statement of claim was delivered on 22nd April, 2004. This was followed by a notice for particulars of 13th May, 2004, which was replied to on 3rd June, 2004.

13 By a notice of motion dated 9th June, 2004, the plaintiffs applied to enter this case into the commercial list. The application was grounded upon an affidavit sworn by Mr. Liam Kennedy, a partner in the firm of A & L Goodbody who act on behalf of the plaintiffs. The affidavit was lengthy and explained the basis upon which it was contended on behalf of the plaintiffs that the proceedings were appropriate for entry into the commercial list. The affidavitinter alia identified the commercial consequences (which I have already alluded to in short form above) for the plaintiffs should the legislation be brought into force.

14 A short replying affidavit was filed by the defendants on the morning of the hearing. It made no attempt to controvert the averments contained in Mr. Kennedy's affidavit. It expressed the view that the proceedings did not constitute commercial proceedings within the meaning of order 63(A) and therefore that the defendants were not in a position to consent to the application for transfer. The affidavit exhibited a letter from the Chief State Solicitor dated 16th June, 2004, which was sent to the plaintiffs” solicitors and read as follows:-

"Dear Sirs"

15 We have noted that your motion to transfer these proceedings into the commercial list is listed for hearing on Friday, June 18th. We are not of the view that the proceedings come within the definition of commercial proceedings set out in order 63(A), rule 1 of the Rules of the Superior Courts. In particular, we do not agree with your contention that the proceedings come within order 63(A) 1(g). These proceedings are, in essence, a constitutional challenge to the validity of legislation. Our counsel will therefore indicate to the court that our clients do not feel it appropriate to consent to the transfer of these proceedings to the commercial list.

16 Nonetheless, our clients are of the view that these proceedings would benefit from case management. Our clients are also happy to facilitate the expeditious hearing of this action, although under separate cover, as you will be aware, we have confirmed that the impugned sections of the 2004 Act will not be commenced prior to 15th December, 2004.

17 As you are aware from the previous challenge brought in respect of the Public Health (Tobacco) Act, 2002, we are of the view that these proceedings will require a lengthy trial of perhaps four weeks.

18 We disagree fundamentally with your clients” assertion that the necessity for evidence is limited. Our view is that, in order to permit the court to apply the proportionality test, it would be necessary for the court to hear evidence as to the factual basis for the public health objective of the legislation. We have clarified the availability of our expert witnesses, many of whom would have difficulty with a trial date before the end of this legal term. However, with sufficient notice, our experts could make themselves available for a date in the Michaelmas term."

19 It is to be noted that the Michaelmas term there mentioned was Michaelmas 2004.

20 I decided to admit the case to the commercial list. It is true to say that the defendants opposed the application but by no stretch of the imagination could the opposition be described as strong, strenuous or vociferous. The opposition was entirely consistent with the phrase used in the final sentence of the first paragraph of the letter from which I have just quoted. The defendants "did not feel it appropriate to consent to the transfer of the proceedings". They clearly recognised both in the letter and in the submissions of counsel the benefits that could be obtained for the litigation by the utilisation of the procedures which are encompassed in order 63(A) of the Rules of the Superior Courts.

21 The rather supine nature of the opposition to the transfer of the case into the commercial list is demonstrated not merely in the correspondence from which I have quoted and what happened in court but by the fact that no appeal was taken against the order which I made. Furthermore the defendants have fully participated in all of the case management procedures which were adopted thereafter. I will deal with these presently.

22 Immediately prior to the case entering the commercial list the defendants delivered their defence. Pursuant to an order made on 18th June, 2004 a reply to that defence was delivered on behalf of the plaintiffs on 29th June, 2004; a rejoinder was delivered on behalf of the defendants on 6th July, 2004.

23 A further directions hearing took place on 2nd July, 2004. On that occasion the parties were directed to prepare and lodge in the Central Office, (a) a list of the issues in respect of which evidence was expected to be adduced; (b) an outline of the extent of the evidence and (c) a list of the witnesses or, alternatively, the type of witnesses who would give evidence on those issues.

24 On the basis of those directions, with which the defendants agreed, the matter was adjourned for further directions to 9th July, 2004. At no stage during the hearing of 2nd July or 9th...