PJ Carroll & Company Ltd v Minister for Health and Children

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 01 June 2006
• Neutral Citation: [2005] IESC 26,[2006] IESC 36
• Court: Supreme Court
• Docket Number: [S.C. Nos. 336 of 2005 and 25 of
• Date: 01 June 2006

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

BETWEEN/

P.J. CARROLL & COMPANY LIMITED, JOHN PLAYER &SONS LIMITED, VAN NELLE (IRELAND), REEMTSMA CIGARETTENFABRIKEN GmbH,GALLAHER (DUBLIN) LIMITED, SOCIETE NATIONALE D'EXPLOITATION INDUSTRIELLEDES TABACS ET ALLUMETTES (SEITA), GERRY LAWLOR AND CONORFULLER

Plaintiffs/Respondents

and

THE MINISTER FOR HEALTH AND CHILDREN, IRELAND, THEATTORNEY GENERAL AND THE OFFICE OF TOBACCOCONTROL

Defendants/Appellants

[2005] IESC 26

Murray C.J.

Denham J.

Geoghegan J.

Fennelly J.

McCracken J.

Appeal No. 421/2004

THE SUPREME COURT

CONSTITUTIONAL LAW

Evidence

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

The plaintiffs challenged the Public Health (Tobacco) Acts 2002 and 2004 and the European Communities (Manufacture, Presentation and Sale of Tobacco Products) Regulations 2003. The Commercial Court (Kelly J.) held that, because of admissions made by the plaintiffs, the defendants were not entitled to lead evidence as to the nature of the product and its harmful effects to support the contention that the legislation was proportional.

Held by the Supreme Court (Murray CJ, Denham, Geoghegan, Fennelly and McCracken JJ) in allowing the appeal and setting aside the order of the Commercial Court that the State should not be precluded from calling contextual evidence to support the contention that the legislation was proportional.

Per curiam In essence the case was a constitutional challenge rather than a commercial case. It was highly doubtful whether it was wise in practice, even if permissible in law, to have allowed a case which was fundamentally a constitutional action to enter the Commercial List.

Reporter: R.W.

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 1994 3 IR 593 1994 2 ILRM 420

R v ATTORNEY GENERAL 1965 IR 294

ENRIGHT v IRELAND 2003 2 IR 321 2004 1 ILRM 103

CONSTITUTION ART 26

HOUSING (PRIVATE RENTED DWELLINGS) BILL 1981, IN RE 1983 IR 186

1 JUDGMENT of Mr. Justice Geoghegandelivered the 3rd day of May 2005

2 This is an appeal from an order made by the High Court (Kelly J.)sitting as "the Commercial Court" being a branch ofthe High Court recently established with a view to expedition andefficiency in the management and trials of commercial cases. Threejudges of the High Court have been specially assigned by the Presidentof the High Court to deal with cases coming before the Commercial Courtand Kelly J. is the senior judge in charge of that court. It is, Ithink, generally accepted that the Commercial Court is already provingto be a successful institution. An integral part of that success is casemanagement. Most orders by way of case management in the CommercialCourt are, to some extent, of a discretionary nature and in practicemost of them would be unappealable. I would take the view that as ageneral rule this court should be slow to interfere with case managementtype orders in the Commercial Court unless there is a clear error of lawinvolved or the managing judge has clearly not exercised his or herdiscretion correctly. As the institution is a new one it may well bethat this is the first case that has come before this court. If so, itis particularly unfortunate that I find myself compelled to place it inwhat I believe to be the exceptional category of cases in which thiscourt should set aside a management ruling of the court.

3 To some extent what has led to this situation is that the case is notreally a commercial case in the ordinary sense in which that term isused. 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 theSuperior Courts (Commercial Proceedings) 2004 (S.I. No. 2 of 2004)entered the proceedings in the Commercial List. The court was empoweredto do this only in relation to "commercialproceedings" within the meaning of r. 1 of the same order.That rule lists a number of specific categories of proceedings which inordinary parlance would be regarded as "commercialproceedings" 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 commercialand any other aspect thereof considers appropriate for entry in theCommercial List"

4 It is not clear from the order whether both sides had consented to thecase being dealt with in the Commercial List. One can well imagine thatit might have suited both sides. It is easy to be wise after the eventbut given the subsequent history of the case it would seem to me to behighly doubtful that it was wise in practice, even if permissible inlaw, to have allowed this case enter the Commercial List. In itsessence, it is not a commercial case. It is a constitutional action. Iam not in anyway suggesting that every case which challenges theconstitutionality of a statutory provision should be precluded frombeing entered into the Commercial List. Each case must depend on its ownfacts. But I see a difference between a case which is fundamentally acommercial case but where they may be tagged on as a last resort reliefa challenge to the constitutionality of a statutory provision on the onehand and an action which from the beginning is fundamentally aconstitutional action. It may be appropriate to enter the former in theCommercial List but caution should be exercised in admitting the latter.It would seem to me that this case clearly falls within the lattercategory.

5 Now that the case is for better or worse in the Commercial Court, I havecome to the conclusion that if I am satisfied (as I am) that on at leastone of the grounds of appeal put forward by the appellants the order ofthe High Court ought to be set aside, I should not express any views onother grounds raised. I have formed a definite view that the appellantsare clearly entitled to call oral evidence to support the contentionthat the legislation is proportional. As other issues which have beenraised in this appeal may well come to the fore either in future casemanagement rulings in these proceedings or in relation to rulings whichmay have to be made by the trial judge, I think that it would bepremature and wrong unnecessarily to express any views on them at thisstage.

6 I therefore intend to concentrate on the arguments based onproportionality.

7 The order the subject matter of this appeal which was made on the 30thJuly, 2004 in its principal operative part included a finding that itwas not open to the appellants to seek to adduce evidence at the trialof the action in respect of facts which had been admitted in thepleadings and to quote the order:

"which specifically include the nature of tobacco and its healtheffects the entitlement of the first defendant to propose and thelegislature to enact legislation based upon its concerns regarding thehealth consequences of smoking the entitlement to propose and enactlegislation based on the belief that some restrictions on theadvertising of tobacco products may achieve a public health objective orprotect children and young people the fact that the Oireachtas acted forthe motives alleged at paragraph 27 of the Defence and that it wasentitled to have regard to the joint committee reports to the minutes ofevidence given to the joint committee and to the inclusions on theadoption of the anti-smoking strategy set out in thosereports."

8 The order went on to rule out also evidence relating to the effect ofadvertising if an amended Reply was delivered admitting those effects.The appellants in cogent written and oral submissions point out that thelitigation relates to alleged unconstitutionality of anti-smokinglegislation and that notwithstanding the factual admissions referred toby Kelly J. the proportionality of the impugned measures is heavily inissue. They then go on to argue, quite rightly in my view, that theymust be allowed adduce oral evidence relating to that issue. This seemsto me to be obvious and does not require detailed analysis ofauthorities whether Irish, Canadian, EU or deriving from anywhere else.It is not in dispute that the respondents intend to adduce oral evidenceat the hearing of this trial. At this stage it is not known what thenature of that evidence is. It may well emerge before the trial in thatunder O. 63A, r. 22 there is a prescribed procedure, unless the judgeotherwise orders, providing for serving of written statements outliningthe essential elements of evidence to be adduced. It would seeminconceivable that part of the evidence adduced on behalf of therespondents will not be relevant to proportionality. At the very leastit would be premature at this stage to rule out any particular evidenceon behalf of the appellants on this matter.

9 Counsel on behalf of the appellants place considerable emphasis on whatthey call "the classic exposition" of theproportionality doctrine to be found in the judgment of Costello J. in Heaney v. Ireland [1994] 3 I.R. 593:

"The objective of the impugned provision must be of sufficientimportance to warrant overriding a constitutionally protected right. Itmust relate to concerns pressing and substantial in a free anddemocratic 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...