PJ Carroll & Company Ltd v Minister for Health and Children

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 09 December 2005
• Neutral Citation: [2005] IEHC 432
• Date: 09 December 2005
• Court: High Court
• Docket Number: [2004 No. 4729P]; [S.C. No.

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

COMMERCIAL

BETWEEN

PJ CARROLL AND COMPANY LIMITED, JOHN PLAYER AND SONS LIMITED, VAN NELLE (IRELAND), REEMTSMA CIGARETTENFABRIKEN GmbH, GALLAHER (DUBLIN) LIMITED, SOCIETE NATIONALE D'EXPLOITATION INDUSTRIELLE des TABACS et, ALLUMETTES (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

[2005] IEHC 432

[No. 4729 P/2004]

THE HIGH COURT

PRACTICE AND PROCEDURE

Discovery

Relevancy - Necessity - Constitutional challenge to legislative ban on advertising of tobacco products - Whether documents relevant to question of proportionality of ban - Whether documents relevant and necessary for fair disposal of action - Ryanair v Aer Rianta [2003] 4 IR 264 considered -Rules of the Superior Courts 1986 (SI 15/1986), O 31, r 12 - Discovery refused (2004/4729P - Kelly J - 9/12/2005) [2005] IEHC 432

P J Carroll Ltd v Minister for Health

The defendants sought an order requiring the plaintiffs to make discovery of two categories of documents, which related to materials dealing with point of sale advertising. The plaintiffs who claimed certain declaratory relief refused to make discovery of the documents sought on the basis that the discovery sought was inappropriate in a case of this nature, which consisted almost exclusively of legal argument concerning the validity of certain legislation. Furthermore, the plaintiffs argued that the discovery sought was not relevant and necessary to enable the defendants defend the claim by way of justification.

Held by Kelly J. in refusing the application: That at the time of the passing of the relevant legislation, the materials sought to be discovered were not known to the defendants or parliament and accordingly those documents could not have any relevance to the establishment of the defence of justification. Furthermore, the discovery sought was neither relevant nor necessary to dispose fairly of the issue in dispute, namely whether the defendants behaved lawfully in prohibiting the imparting of factual information in relation to the corporate plaintiff's products nor for saving costs.

Reporter: L.O'S.

PUBLIC HEALTH (TOBACCO) ACT 2002 S33(A)

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

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

PUBLIC HEALTH (TOBACCO) ACT 2002 S43(3)

PUBLIC HEALTH (TOBACCO) ACT 2002 S43(4)(B)

PUBLIC HEALTH (TOBACCO) ACT 2002 S43(5)

PUBLIC HEALTH (TOBACCO) ACT 2004

RSC O.31 r12

COMPAGNIE FINANCIERE DU PACIFIQUE v PERUVIAN GUANO CO 1882 11 QBD 55

AQUATECHNOLOGIE LTD v NATIONAL STANDARDS AUTHORITY OF IRELAND (NSAI) & ORS UNREP SUPREME 10.7.2000 2000/1/209

FRAMUS LTD & ORS v CRH PLC & ORS 2004 2 IR 20 2004 2 ILRM 439

HANNON v CMRS OF PUBLIC WORKS & ORS UNREP MCCRACKEN 4.4.2001 2001/11/3168

RYANAIR PLC v AER RIANTA CPT 2003 4 IR 264 2004 1 ILRM 241

COOPER FLYNN v RADIO TELEFIS EIREANN & ORS 2000 3 IR 344 2001 1 ILRM 208

TAYLOR v ANDERTON (POLICE COMPLAINTS AUTHORITY INTERVENING) 1995 2 AER 420 1995 1 WLR 447

TAYLOR v CLONMEL HEALTHCARE LTD 2004 1 IR 169 2004 2 ILRM 133

RSC O.63(A)

EEC DIR 98/34

EEC DIR 98/48

1 JUDGMENT of Mr. Justice Kelly delivered the 9th day of December, 2005.

The Application

2 The defendants seek an order requiring the plaintiffs to make discovery of two categories of documents. Both relate to materials dealing with point of sale advertising.

3 The first category relates to point of sale advertising within the State conducted on behalf of the corporate plaintiffs or any of them for the period from 1998 to date or planned but not yet executed. This has been referred to by the defendants in their correspondence with the plaintiffs as "objective" point of sale advertising documents.

4 The second category is in respect of what has been described as "subjective" documentation. It relates to instructions given by the corporate plaintiffs to any agencies, persons or bodies engaged by them including but not limited to marketing/advertising agencies, media agencies or public relations firms in respect of point of sale advertising within the State conducted on behalf of the corporate plaintiffs from 1998 to date or planned but not executed. The motion paper sets out a non-exhaustive list of such materials. Ten items are contained in that list. They are:

5 1. Client agency contract reports

6 2. Client briefs

7 3. Creative briefs

8 4. Media briefs

9 5. Media scheduler

10 6. Advertising budgets

11 7. Strategic and marketing planning documents

12 8. Market research reports relating to each campaign

13 9. Reports which establish links to other communications strategies such as public relations and

14 10. Reports which establish links between the advertising campaign and marketing strategies.

15 The defendant's application is resisted by the plaintiffs on three bases. They contend that:

16 (a) discovery is not appropriate in proceedings such as these

17 (b) it is neither relevant or necessary and

18 (c) ignores the effect of a ruling made by me on 17th January, 2003, in respect of earlier proceedings between the same parties touching upon the same issues.

The basis for the application

19 In these proceedings the plaintiffs claim a wide range of declaratory reliefs directed to provisions of the Public Health Tobacco Act 2002 and 2004 and the European Communities (Manufacture, Presentation and Sale of Tobacco Products) Regulations 2003. They challenge certain provisions of these enactments on a threefold basis. First, they claim that some of them are unconstitutional. Secondly they allege invalidity because the provisions are in breach of European law. Thirdly, they claim that certain sections of the provisions are incompatible with the State's obligations under the provisions of the European Convention on Human Rights. Insofar as the Regulations are concerned there is an additional claim that in making them the first defendant acted ultra vires.

20 By a long letter of the 4th July, 2004, the defendants made their request for the discovery in suit. That letter set out the documents being sought which I have already described.

21 During the course of argument the defendants modified their request in respect of the first category. They no longer seek all documents in relation to point of sale advertising within the State from 1998 to date or planned. They will be content with samples of such documents.

22 As this letter of 4th July, 2004, set out in some detail the reasons for the discovery sought I reproduce here the relevant portions of it. I will do likewise with the response since these letters demonstrate the approach of the parties to the issue.

Letter of 4th July, 2004

23 The letter states:

"The plaintiffs challenge, inter alia, the retail advertising ban put in place by s. 33A of the Public Health (Tobacco) Act, 2002 (as amended) (The 2002 Act) and a closed container requirement and display ban put in place by ss. 43(3), 43(4)(b) and s. 43(5). In this regard, we refer you to the relevant portions of the Statement of Claim."

24 The defendants plead that the impugned sections of the 2002 Act are lawful and, in particular, that the advertising restriction put in place by s. 33A, insofar as it impinges on any constitutional rights which the plaintiffs or any of them assert, is justified and proportionate having regard to the public health threat posed by tobacco products. In particular, the defendants plead, at paragraph 33 of the defence, that the existing restrictions on advertising were not sufficient to achieve the public health objectives. Further, there were reasonable grounds for the Oireachtas to consider that a comprehensive ban on the advertising of tobacco products would better protect children and young people.

25 In their Reply, the plaintiffs contend that the prohibition of communication of factual information, or expression of opinion, relating to their products resulting from the advertising ban put in place by the 2002 Act, is not justified or proportionate on the basis alleged by the defendants. Further, the plaintiffs deny the particulars relied upon at paragraph 33 of the Defence. The plaintiffs admit only, at paragraph 5 of the Reply, that the Oireachtas is entitled to 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.

26 In particular, the corporate plaintiffs rely on their right to communicate factual information to the seventh and eight named plaintiffs. The corporate plaintiffs have repeatedly asserted that the advertising ban impinges on their entitlement to communicate factual information such as the name of the brand, type or price of tobacco products or a variant thereof (or any new products) or as to their characteristics and attributes or as to the availability and existence, or as to the name of the manufacturer of such products, or relating to or comprising the trade marks, emblems, images or logos by reference to which such products are marketed or sold (replies to particular 6(a), June 3rd 2004).

27 Having regard to the above, there is an issue between the parties as to the role of advertising and the use to which it is put and has been put by the corporate plaintiffs.

28 As a result the defendants are entitled to ascertain the purposes for which advertising campaigns were launched by the corporate plaintiffs and the corporate plaintiffs perception of the effects of those campaigns, in order to ascertain whether those campaigns were in fact availed of to communicate the factual information which the corporate plaintiffs claim that the...