Supreme Court allows appeal to set aside High Court's premature ruling on State's right to adduce oral evidence.

THE SUPREME COURT

Appeal No. 421/2004

Murray C.J.

Denham J.

Geoghegan J.

Fennelly J.

McCracken J.

BETWEEN/

P.J. CARROLL & COMPANY LIMITED, JOHN PLAYER & 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/Respondents

and

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

Defendants/Appellants

JUDGMENT of Mr. Justice Geoghegan delivered the 3rd day of May 2005

1. 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.

2. 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”.

3. 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.

4. 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.

5. I therefore intend to concentrate on the arguments based on proportionality.

6. 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.”

7. 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.

8. 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 [1994] 3 I.R. 593:

“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.”

9. The appellants argue that it is not sufficient for the purposes of a proportionality analysis for the appellants to show that the

Oireachtas might have a rational basis for its belief as to the adverse public health effects of tobacco. They point out that at most

those concessions allow that the legislation was based on rational considerations and possibly had a legitimate aim but nothing more.

In paragraph 4.5 of their written submissions counsel for the appellants say the following:

“In these proceedings it may accordingly be necessary for the appellants to establish that wide ranging restrictions on the

distribution and advertising of tobacco products are objectively justifiable and are of ‘sufficient importance to warrant

overriding a constitutionally protected right’. This exercise cannot be done in the abstract, still less on the basis of the limited

concessions made by the respondents. In sum, therefore, the appellants are entitled to call evidence on these issues to enable

the court to arrive at a view as to the proportionality of the impugned measures and this right cannot be defeated by the

plaintiffs making certain concessions for the purposes of the litigation.”

10. I find myself in agreement with that submission. While the respondents resist the appeal on different fronts, I would interpret their

submissions as making one fundamental argument in particular, namely, that it is not in fact legitimate for the State ever to call

evidence on the proportionality issue. The respondents correctly point out that the Oireachtas is entitled to legislate on the basis of

its belief and general experience. It is quite true also, as they point, out that members of the Oireachtas cannot be cross-examined

as to the thought process which results in the legislation. In their written submissions, counsel for the respondents sum up their

argument in a colourful sentence

“It is an unconstitutional exercise in ventriloquism to proffer the views of unidentified experts, however, eminent in lieu of, or in

addition to the words of the legislation and its legislative history.”

11. In my view, this argument is fallacious. Although courts in this jurisdiction interpret statutes by reference to the words used, they

do not do so in a vacuum. There is always a contextual background of which the courts are perfectly well aware. There can be no

question of course in a constitutional challenge, of the State adducing evidence as to what were the intentions as such of the

Oireachtas or particular members thereof. But that is quite different from suggesting that there cannot be evidence of objective

external facts existing at the time that the legislation was enacted. Indeed, this would seem to fit in with the first of the three tests

set out by Costello J. in relation to proportionality.

12. It has never been the case that the State was precluded from calling oral evidence in a constitutional action. Indeed, on

occasions, the State has been criticised in legal circles for not doing so. As counsel for the appellants point out, Ryan v. The

Attorney General [1965] I.R. 294 was an early example of the proportionality test raising its head in a constitutional action and in

which the State was entitled to lead evidence as to the effects of fluoridation. I realise that the respondents are conceding that

evidence may sometimes be given as to effects. But I do not see any great difference in principle. Either challenges to the

constitutionality of statutory provisions are to be heard in all cases without the defendant calling any evidence or the defendants are

entitled to call whatever evidence they may reasonably consider to be relevant. I accept that if a fact is admitted, good case

management may preclude evidence being adduced to prove it. But the proportionality of the impugned legislation in this case is not

admitted.

13. I do not think that there is any significance in the dearth of authority in Ireland on the right of the State to call evidence on the

proportionality issue. It is simply that the problem has not arisen and, of course, as has been pointed out there is the judgment of

Finlay Geoghegan J. in the High Court in Enright v. Ireland [2003] 2 I.R. 321. The respondents purported to distinguish that case.

Even if they are right in their point of distinction it would make no difference to the view I take that clearly such evidence is

admissible. I do not think it necessary to rely on the Canadian case law for this purpose. It is fair to say that the Canadian cases

cited were partly determined on foot of the Canadian Charter of Rights. What I do consider relevant, however, is to refer to the

arguments put forward by the respondents based on what happens in Article 26 References. In their written submissions counsel for

the respondents say the following:

“Perhaps the most striking feature of the lists set out above is the number of Article 26 cases in which proportionality is

considered, necessarily in the abstract, and without evidence. Indeed, if evidence were admissible to assess the proportionality

of any provision then, it must be anticipated that such evidence could scarcely be capable of being marshalled, adduced,

challenged and tested, within the sixty day period allowed for an Article 26 Reference. It cannot be the case that the

Constitution envisages that a Bill could fail an Article 26 Reference because of the absence of proportionality evidence, which

evidence would have been available if the Bill was enacted and subsequently challenged.”

14. It is common knowledge in legal circles that Article 26 References present special problems and in that sense are sui iuris. It has

never been considered altogether satisfactory that the Supreme Court has to decide the constitutionality or otherwise of a Bill in the

abstract and within the tight time limit of sixty days. It has never been ruled out that there might be a Reference in which it would be

necessary to have evidence. The point remains undecided. One could conceive of a case where as a consequence of oral evidence

the sixty day time limit could not be complied with and, indeed, one can postulate other very unusual circumstances in which the time

limit might not be met. It would be quite wrong to speculate on what the legal effects of such problems would be. But the very fact

that these problems can arise in relation to an Article 26 Reference renders it wholly unhelpful as a guide to determining the

circumstances in which the State may be allowed adduce oral evidence in an ordinary constitutional action. Counsel for the

respondents cite the following passage from In re Article 26 of the Constitution and the Private Rented Dwellings Bill 1981 [1983] I.R.

181 at 186.

“Article 26.2.1 says that the court’s decision is to be reached after hearing ‘arguments’ by or on behalf of the Attorney General

and counsel assigned by the courts. The Article makes no reference to the hearing of evidence. In fact, in none of the

references that have come to the courts so far, has evidence been heard. The difficulties that could confront a court of at

least five judges in reaching a unitary decision on the basis of conflicting evidence is too obvious to need elaboration. It is not

necessary in this case, to decide whether evidence may or should be heard when considering a reference under Article 26. In

this, as in all references, the matters argued have had, in the absence of evidence, to be dealt with as abstract problems, to

the extent that unlike practically all other cases coming before the court, there is an absence or shortage of concrete facts,

proven, admitted or projected as a matter of probability. The court, therefore, in a case such as this, has to act on abstract

materials in order to cope with social, economic, fiscal and other features that may be crucial to an understanding of the

working and the consequences of the referred Bill.”

15. Although counsel for the respondents are relying on this passage it would seem to me to be two-edged from their point of view. It

seems clear that in that passage the inclusion of the words “unlike practically all other cases coming before the court” indicates that

the court is bemoaning the “absence or shortage of concrete facts”. Just because an Article 26 Reference is normally argued in the

abstract is no argument for suggesting that in an ordinary constitutional action where legislation is being impugned, the State should

be precluded from calling contextual evidence in aid of a proportionality issue.

16. I would allow the appeal and set aside the order of the High Court. This does not mean that the trial judge may not be entitled to

make his or her own rulings relating to any issue that may then arise involving alleged unnecessariness on the part of the State in

calling any particular evidence. But a premature ruling of that kind at this stage is not justified.