P.J. Carroll & Company Ltd v Minister for Health (No 2)

• Jurisdiction: Ireland
• Judgment Date: 22 July 2005
• Date: 22 July 2005
• Docket Number: [2004
• Court: High Court

P.J. Carroll & Co. Ltd. v. Minister for Health (No. 2)

P.J. Carroll & Company Limited, John Player & Sons Limited, Van Nelle (Ireland), Reemtsma Cigarettenfabriken GmBH, Gallagher (Dublin) Limited, Société Nationale D'Exploitation Industrielle des Tabacs et Alumettes (Seita) and 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 (No. 2)

[2005] IEHC 267

[2004 No. 4729P]

High Court

Practice and procedure - Commercial list - Jurisdiction - Case management - Pre-trial conferences - Whether inherent jurisdiction - Rules of the Superior Courts 1986 (S.I. No. 15), O. 63(A) - Rules of the Superior Courts (Commercial Proceedings 2004 (S.I. No. 2).

The case was transferred into the commercial list. The defendants sought to have it removed from that list. They contended that the case contained a number of constitutional issues and was complex. They also argued that the case would take a considerable amount of time.

Held by the High Court (Kelly J.), in refusing the application, 1, that the court had an inherent jurisdiction to transfer cases out of the commercial list which enabled the court to exercise control over the process which regulated the proceedings, by preventing an abuse of process and compelling the observance of the process. It was a residual source of power which the court might draw upon as necessary wherever just or equitable.

2. That commercial cases by their nature were very complicated. Order 63(A) of the Rules of the Superior Courts 1986 was structured to enable complex cases to be dealt with justly and expeditiously. The court was given a variety of powers which did not apply to other divisions of the court. Case management and pre-trial conferences all have as their object the marshalling of complex cases which enabled the judge in charge of the list to decide that a case should be subject to case management by virtue of its complexity.

Cases mentioned in this report:-

Mulholland v. An Bord Pleanála[2005] IEHC 188, [2005] 3 I.R. 1.

P.J. Carroll & Co. Ltd. v. Minister for Health and Children[2004] IEHC 310, [2005] IESC 26, [2005] 1 I.R. 294; [2005] 2 I.L.R.M. 481.

Motion on notice

The facts of the case have been summarised in the headnote and are more fully set out in the judgment of Kelly J., infra.

By notice of motion dated the 6th July, 2005, the defendants sought,inter alia, to transfer the entire case out of the commercial list.

The application was heard by the High Court (Kelly J.) on the 11th July, 2005.

Cur. adv. vult.

Kelly J. 22nd July, 2005

Introduction

1 One hundred and six cases have been permitted to enter the commercial list of this court since it was created on the 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 O. 63(A) of the Rules of the Superior Courts 1986. 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.

The proceedings

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 for the Protection of Human Rights and Fundamental Freedoms.

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:-

• (a) make it practically impossible for the plaintiffs to distribute or launch new brands on the market;

• (b) prevent any competition between the plaintiffs;

• (c) prevent the plaintiffs increasing their share of the existing market;

• (d) deprive the plaintiffs of the benefit of the intellectual property in their respective tobacco brands;

• (e) force the plaintiffs to provide confidential proprietary information to the fourth defendant;

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

5 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 the Act of 2002 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 the Act of 2002 as they were required to do by Directive 1998/34/E.C., as amended by Directive 1998/48/E.C. As a consequence, an undertaking was given on behalf of the first defendant that certain sections of the Act of 2002 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.

6 The present proceedings were commenced on the 16th April, 2004. A statement of claim was delivered on the 22nd April, 2004. This was followed by a notice for particulars of 13th May, 2004, which was replied to on the 3rd June, 2004.

Entry into the commercial list

7 By a notice of motion dated the 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 solicitors 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 affidavit, inter 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.

8 Ashort 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...