PJ Carroll & Company Ltd v Minister for Health and Children
 IESC 26
THE SUPREME COURT
421/2004 - Geoghegan [nem diss] Murray Denham Fennelly McCracken - Supreme - 3/5/2005 - 2005 1 IR 314 2005 2 ILRM 481 2005 10 2014 2005 IESC 26
RSC O.63A r4(1)
RULES OF THE SUPERIOR COURTS (COMMERCIAL PROCEEDINGS) 2004
SI 2/2004RSC O.63A r1
RSC O.63 r22
HEANEY v IRELAND
R v ATTORNEY GENERAL
ENRIGHT v IRELAND
CONSTITUTION ART 26
HOUSING (PRIVATE RENTED DWELLINGS) BILL 1981, IN RE
Oral evidence - Facts admitted - Issues - Whether evidence should be adduced when facts admitted - Whether proportionality admitted - Rules of the Superior Courts (SI 15/1986), O 19, r 3 - Evidence allowed
JUDGMENT of Mr. Justice Geoghegan delivered the 3rd day of May 2005
This is an appeal from an order made by the High Court (Kelly J.) sitting as "the Commercial Court" being a branch of the High Court recently established with a view to expedition and efficiency in the management and trials of commercial cases. Three judges of the High Court have been specially assigned by the President of the High Court to deal with cases coming before the Commercial Court and Kelly J. is the senior judge in charge of that court. It is, I think, generally accepted that the Commercial Court is already proving to be a successful institution. An integral part of that success is case management. Most orders by way of case management in the Commercial Court are, to some extent, of a discretionary nature and in practice most of them would be unappealable. I would take the view that as a general rule this court should be slow to interfere with case management type orders in the Commercial Court unless there is a clear error of law involved or the managing judge has clearly not exercised his or her discretion correctly. As the institution is a new one it may well be that this is the first case that has come before this court. If so, it is particularly unfortunate that I find myself compelled to place it in what I believe to be the exceptional category of cases in which this court should set aside a management ruling of the court.
To some extent what has led to this situation is that the case is not really a commercial case in the ordinary sense in which that term is used. By order made the 18th June, 2004, Kelly J. pursuant to O. 63A, r. 4(1) of the Rules of the Superior Courts as inserted by the Rules of the Superior Courts (Commercial Proceedings) 2004 ( S.I. No. 2 of 2004) entered the proceedings in the Commercial List. The court was empowered to do this only in relation to "commercial proceedings" within the meaning of r. 1 of the same order. That rule lists a number of specific categories of proceedings which in ordinary parlance would be regarded as "commercial proceedings" but at paragraph (b) it also includes a kind of "catch-all" category which reads as follows:
"(b) Proceedings in respect of any other claim or counterclaim, not being a claim or counterclaim for damages for personal injuries, which the judge of the Commercial List, having regard to the commercial and any other aspect thereof considers appropriate for entry in the Commercial List"
It is not clear from the order whether both sides had consented to the case being dealt with in the Commercial List. One can well imagine that it might have suited both sides. It is easy to be wise after the event but given the subsequent history of the case it would seem to me to be highly doubtful that it was wise in practice, even if permissible in law, to have allowed this case enter the Commercial List. In its essence, it is not a commercial case. It is a constitutional action. I am not in anyway suggesting that every case which challenges the constitutionality of a statutory provision should be precluded from being entered into the Commercial List. Each case must depend on its own facts. But I see a difference between a case which is fundamentally a commercial case but where they may be tagged on as a last resort relief a challenge to the constitutionality of a statutory provision on the one hand and an action which from the beginning is fundamentally a constitutional action. It may be appropriate to enter the former in the Commercial List but caution should be exercised in admitting the latter. It would seem to me that this case clearly falls within the latter category.
Now that the case is for better or worse in the Commercial Court, I have come to the conclusion that if I am satisfied (as I am) that on at least one of the grounds of appeal put forward by the appellants the order of the High Court ought to be set aside, I should not express any views on other grounds raised. I have formed a definite view that the appellants are clearly entitled to call oral evidence to support the contention that the legislation is proportional. As other issues which have been raised in this appeal may well come to the fore either in future case management rulings in these proceedings or in relation to rulings which may have to be made by the trial judge, I think that it would be premature and wrong unnecessarily to express any views on them at this stage.
I therefore intend to concentrate on the arguments based on proportionality.
The order the subject matter of this appeal which was made on the 30th July, 2004 in its principal operative part included a finding that it was not open to the appellants to seek to adduce evidence at the trial of the action in respect of facts which had been admitted in the pleadings and to quote the order:
"which specifically include the nature of tobacco and its health effects the entitlement of the first defendant to propose and the legislature to enact legislation based upon its concerns regarding the health consequences of smoking the entitlement to propose and enact legislation based on the belief that some restrictions on the advertising of tobacco products may achieve a public health objective or protect children and young people the fact that the Oireachtas acted for the motives alleged at paragraph 27 of the Defence and that it was entitled to have regard to the joint committee reports to the minutes of evidence given to the joint committee and to the inclusions on the adoption of the anti-smoking strategy set out in those reports."
The order went on to rule out also evidence relating to the effect of advertising if an amended Reply was delivered admitting those effects. The appellants in cogent written and oral submissions point out that the litigation relates to alleged unconstitutionality of anti-smoking legislation and that notwithstanding the factual admissions referred to by Kelly J. the proportionality of the impugned measures is heavily in issue. They then go on to argue, quite rightly in my view, that they must be allowed adduce oral evidence relating to that issue. This seems to me to be obvious and does not require detailed analysis of authorities whether Irish, Canadian, EU or deriving from anywhere else. It is not in dispute that the respondents intend to adduce oral evidence at the hearing of this trial. At this stage it is not known what the nature of that evidence is. It may well emerge before the trial in that under O. 63A, r. 22 there is a prescribed procedure, unless the judge otherwise orders, providing for serving of written statements outlining the essential elements of evidence to be adduced. It would seem inconceivable that part of the evidence adduced on behalf of the respondents will not be relevant to proportionality. At the very least it would be premature at this stage to rule out any particular evidence on behalf of the appellants on this matter.
Counsel on behalf of the appellants place considerable emphasis on what they call "the classic exposition" of the proportionality doctrine to be found in the judgment of Costello J. in Heaney v. Ireland
"The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:"
(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
(b) impair the right as little as possible;
(c) be such that their effects on rights are proportional to the objective."
The appellants argue that it is not sufficient for the purposes of a proportionality analysis for the appellants to show that the...
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