Supreme Court dismisses appeals against High Court orders refusing case transfer and discovery in tobacco litigation.

THE SUPREME COURT

Appeal No. 336/2005

Appeal No. 25/2006

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 1st day of June 2006

1. The court has already given its decision in each of these appeals. When doing so it was indicated that the reasons would be

delivered later. In each case, there was a unanimous decision to dismiss the appeal. I intend now to set out in this judgment my

reasons for arriving at that conclusion.

2. The first appeal is an appeal against the decision of the High Court (Kelly J. sitting in the Commercial Court) to refuse an

application to transfer this case out of the Commercial List again and into the ordinary list of the High Court. The second appeal is an

appeal against an order of the High Court (again Kelly J. sitting in the Commercial Court) refusing an order for discovery of documents.

3. I would have no hesitation in dismissing the first appeal for the simple reason that it was open to the appellants to have appealed

the original order admitting the case into the Commercial Court but no such appeal was brought. The State only nominally opposed

that order at the time. There is no relevant change of circumstances which would now justify an application to take the case out of

the Commercial List again. There may well be an inherent discretion in the judge of the Commercial Court to return a case before him

to the ordinary list and, indeed, there probably is but this would not be a case where there would be any justification for doing so. I

entirely agree with the view of the learned High Court judge that the complexity of the case of itself could not afford any such

justification.

4. Having regard to the view I have taken, I do not find it necessary to consider whether as a matter of law this action correctly fell

within the categories permitted to be brought into the Commercial Court under O. 63A of the Rules of the Superior Courts. In my view,

it would be more desirable to postpone any detailed consideration of those rules to a case where the issue properly arises. I would be

entering on a moot if I were to express views on it in this case, given my firm view that the appellant is precluded at this late stage

from obtaining the order they seek. The action must be deemed to have been correctly transferred into the Commercial List.

5. The court did permit counsel to address us on the substantive issue. Having heard the submissions, I am satisfied that there are

arguments to be made as to how those rules are to be interpreted. In short, the question arises as to whether they are to be

interpreted literally or in a purposive manner? For the reasons which I have given, however, I am not expressing any view on this

question.

6. I do have some observations to make on the argument put forward by the appellants that this application was in some way a

natural consequence of my judgment of the 3rd May, 2005 in an appeal in this action relating to a refusal by the High Court to allow

certain types of oral evidence. The learned trial judge is quite correct in his interpretation of that judgment in so far as he says that

my views on the inappropriateness of bringing this case into the Commercial Court were obiter dicta only. Furthermore, even by way

of obiter dictum I did not express any view on whether the action came within one of the categories set out in the rule. My opinion

related only to the actual exercise of the discretion to take the case into the Commercial List. I was of opinion that this action was

essentially a constitutional action and not a commercial action notwithstanding obvious commercial consequences that might result

from the ultimate decision in it. I am still of that view. What I actually said in the judgment was:

“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.”

7. It is perfectly clear, therefore, that even by way of obiter dictum I did not express a view on the actual legality of the admission

of the case into the Commercial List and I can find no justification for any argument otherwise. The appeal must clearly be dismissed.

8. I now turn to the other appeal. This is against the refusal of a motion for discovery issued on the 4th July, 2005. The notice of

motion had sought an order for discovery against the plaintiffs/respondents of

“(a) All documentation in relation 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);

(b) The instructions given by the Corporate plaintiffs to any agencies, persons or bodies engaged by the Corporate plaintiffs or

any of them, including but not limited to marketing/advertising agencies, media agencies or public relations firms in relation to

point of sale advertising within the State conducted on behalf of the Corporate plaintiffs for the period from 1998 to date or

planned (but not yet executed) and including:

(i) Client agency contact reports;

(ii) Client briefs;

(iii) Creative briefs;

(iv) Media briefs;

(v) Media scheduler;

(vi) Advertising budgets;

(vii) Strategic and marketing planning documents;

(viii) Market research reports relating to each campaign;

(ix) Reports which establish links to other communication strategies such as public relations;

(x) Reports which establish links between the advertising campaign and marketing strategies.”

9. This discovery was being sought in the context of an action seeking very extensive reliefs but the alleged relevance of the

discovery sought related to a major issue in the action namely, the constitutionality or otherwise of section 33A of the Public Health

(Tobacco) Act, 2002 as inserted by the Public Health (Tobacco) (Amendment) Act, 2004. This section is not yet in operation but if

and when it comes into effect it will criminalise point of sale advertising by the tobacco companies. For this purpose, a wide statutory

definition is given of such advertising, the effect of which is that there is outlawed any statement about the tobacco products for

sale which goes beyond factual information and could be construed as a recommendation.

10. The learned High Court judge, in his judgment, sets out what is conceded by both sides to be the correct principles to be applied

in considering whether a discovery order is to be granted or not. Kelly J. concluded that the discovery ought to be refused both on

the grounds of non-relevance and on the grounds that it was unnecessary. I found myself unable to agree with the first of those

grounds though I do agree with the second and, therefore, I was in favour of dismissing the appeal.

11. There were two main reasons why the learned High Court judge did not consider that the documentation being sought was

relevant. The first of these was based on the pleadings and in particular paragraphs 33, 34 and 35 of the defence. I think it

appropriate to cite those paragraphs in full.

“33. There were reasonable grounds for the Oireachtas to consider that the restrictions on advertising provided for by section

33A was necessary and that the current restrictions were not sufficient to achieve the public health objective.

34. Further, there were reasonable grounds for the Oireachtas to consider that it should give effect to the Recommendation

and to the WHO Convention, both of which recommend that countries adopt comprehensive restrictions on tobacco

advertising and promotion.

35. Lastly, there were reasonable grounds for the Oireachtas to consider that more comprehensive restrictions on the

advertising of tobacco products would better protect children and young people. Inter alia the Oireachtas was entitled to have

regard to the following factors.

(a) The Report of the Tobacco Free Policy Review Group concluded that the tobacco industry exploited the immaturity of

young people when marketing their tobacco products.

(b) Advertising plays an important role in the promotion of tobacco products to young people.

(c) The 1999 Joint Committee Report states that research demonstrates that 34 per cent of children in the fifteen-

seventeen year age bracket smoke.

(d) A significant number of children commence smoking at an age when they are not lawfully permitted to be sold

cigarettes.”

13. The first point which influenced the learned trial judge was the use of the past tense in those pleadings. He took the view that

the documentation being sought could not have any bearing on what was in the minds of members of the Oireachtas at the time the

legislation was passed. Nor indeed could it have any bearing on what were the objective “reasonable grounds” which influenced the

Oireachtas to pass the legislation. At the hearing of the appeal, counsel for the respondents, Mr. Donal O’Donnell, S.C. conceded that

the issue of the constitutionality of an enactment could not be determined by reference to proof of what was before the members of

the Oireachtas or what was in the minds of the members of the Oireachtas at the time the legislation was passed. Nevertheless, he

was endorsing the view which the learned High Court judge took but he fully admitted that this was solely on the basis of the

pleadings.

14. There are two distinct reasons why I cannot accept this submission. First of all, I do not consider that those pleadings in any way

preclude the appellants from attacking the constitutionality of the section in the context of known facts and circumstances at the

time of the hearing of the action. I do not read those pleadings as containing some implied assumption that there would be one set of

circumstances at the time the legislation was going through the Oireachtas and, potentially, quite a different set of circumstances

afterwards and that the appellants were in any way restricting themselves to the state of affairs at the time that the legislation was

being enacted.

15. The second reason why I cannot accept this submission is that in considering the important question of whether an enactment of

the Oireachtas offends the Constitution, the court itself cannot be in any way bound by some particular manner in which the defence

had been pleaded and, more particularly, the tenses used.

16. I consider that the documents sought are material. The whole case is about point of sale advertising within the State and

documentation relating to that, at any given time, must be relevant in that it is likely to contain within it indications of whether the

advertising practice goes beyond the mere communication of facts.

17. The material sought has been described as partly “objective” and in part “subjective”. The label “subjective” has been attached

to documentation which would merely indicate the intentions and policies of the respondent. These intentions and policies do have a

relevance in that if, for example, as Mr. Gerard Hogan, S.C., counsel for the appellants, argued, the documentation showed that it

was the belief of the tobacco companies that the use of a particular colour in the object or platform which contained the alleged

information had the effect of enhancing sales, that would be relevant because it must be assumed that the tobacco industry has the

expertise to know what affects the ultimate consumer.

18. However, apart from that example of colour, Mr. Hogan was not able to give any solid reasons why he really needed this

documentation even if it is relevant within the principles of discovery.

19. This brings me to the issue of necessity. The learned trial judge was of the view that the appellants had not discharged the

burden of proof that the discovery sought was “necessary for fairly disposing of the cause or matter or for saving costs.” The

appellants intend to rely for expert evidence on three experts, one of them Irish and two of them non-Irish. It is not suggested that

the Irish expert, Professor Corcoran, in any way required the documentation sought and this is indeed a point made by Kelly J. It is

true that the other two experts, Professor Hastings and Professor Pollay would like to have the documentation because they are not

wholly familiar with the Irish market. But that knowledge of the Irish market can be acquired by ordinary objective observation of what

happens at the points of sale and it is, in my view, an unnecessary “Rolls Royce” requirement of the two non-Irish experts that the

extensive documentation sought on the discovery be produced to them. Apparently, Professor Pollay has been described as “a virtual

living encyclopaedia on tobacco advertising and a scrupulously rigorous marketing researcher”. A great deal of his evidence in

relation to what happens in other countries must surely be relevant to the Irish market quite apart from any knowledge he may now

acquire of the Irish market. In their written submissions, the respondents point out that neither Professor Hastings nor Professor

Pollay has stated anywhere whether on affidavit or otherwise that they are not in a position to offer evidence and opinions in relation

to the issues in the case without access to the documentation sought by way of discovery. Indeed they have already set out the

evidence that they intend to give pursuant to the case management in the Commercial Court.

20. Even if the documentation might indicate the intentions and policies of the tobacco companies, the appellants have sufficient

expertise at their disposal to provide adequate evidence without that documentation of any harmful advertising, subliminal or

otherwise, which the tobacco industry may engage in. As I have already indicated, most of the evidence can simply be gathered by

ordinary inspection.

21. I am satisfied that the learned High Court judge was correct in holding that the discovery was unnecessary. It has been pointed

out in some of the case law relating to discovery and I think that I specifically said it in Taylor v. Clonmel Healthcare Limited [2004]

1 I.R. 169 that perhaps more often than not, if a document is relevant, it is also necessary. But the separation of the element of

necessity from the concept of relevance is, nevertheless, important and has real application in some cases such as, of course, the

case in which it was originally highlighted namely, Brooks Thomas Limited v. Impact Limited [1999] I ILRM 171. It would seem to me

that this is clearly a case where the distinction is important. The documents are relevant but unnecessary.

Those are my reasons why I took the view that the appeal should be dismissed.