High Court of Ireland Decisions

Judgment Title: P J Carroll and Company Limited & Ors v The Minister for Health and Children & Ors

Neutral Citation: [2005] IEHC 432


High Court Record Number: 2004 4729P

Date of Delivery: 09/12/2005

Court: High Court

“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.
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.
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.
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).
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.
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 impugned sections of the 2002 Act now prevents them from communicating and to ascertain the nature of the factual information which the corporate plaintiffs chose to communicate to consumers, including the seventh and eight named plaintiff.
(ii) “Objective” point of sale advertising documentation
As regards the documentation sought at 1 this covers point of sale advertising that was, of course, in the public domain at certain times in that it was installed at retail outlets. To this extent it may, in theory, be objectively ascertained. However, unlike advertising run in the print media, there is no method by which the defendants can collate the forms of advertising availed of (advertising on gantries, cashmats etc.). Unlike the position in respect of the print media, there are no archives that can be consulted to ascertain the extent and form of the campaigns run.
In this regard, and with a view to narrowing the scope of the discovery which the defendants view as absolutely necessary, we confirm that we have consulted with our advertising experts to ascertain the information that they will require to test and address the claims made in these proceedings by the corporate plaintiffs. Our experts are satisfied that, in relation to forms of advertising other than point of sale advertising, documentation exists which will permit them to test the statements made by the corporate plaintiffs in relation to other forms of advertising. However, this is not the case in relation to point of sale advertising campaigns. This information can be garnered only through the corporate plaintiffs or their agents.
This category of documentation is sought in respect of the period 1998 to date. In 2000, a ban on tobacco advertising in the print media was introduced. As a result, the defendants will contend that the role of point of sale advertising took on a vital importance for the tobacco industry from in or about the time when the ban was first envisaged (approximately 1998). In the circumstances, the defendants seek the point of sale documentation only in respect of the period when this form of advertising took on greater significance. In this regard, the campaigns currently envisaged, in the context of a changing regulatory environment are of fundamental importance and are, of course, not within the defendants’ knowledge. The defendants will contend that, as channels for advertising are reduced, the tobacco industry focuses its efforts on the subsisting lawful channel. As the scope for advertising in various media narrowed by virtue of domestic and EU legislation over the last four years, the significance of the manner in which the industry has chosen and will to continue to seek to communicate through the point of sale increases.
(iii) “Subjective” point of sale advertising documentation
As regards the documentation sought at (ii), this is designed to ascertain the tobacco industries perception of any communication of information to a target audience through advertising and the effect of such advertising.
The documentation sought is also necessary in order to allow the court to consider the effectiveness of marketing or advertising campaigns, in particular on young people.
The defendants accept that, to a certain extent, an analysis of the advertising campaigns conducted in the past, (through media which permitted consultation and collation), will be sufficient to ascertain the information which the corporate plaintiffs chose to disseminate and that which the corporate plaintiffs chose not to disseminate. To that extent, it is the objective manifestation of the behaviour of the tobacco companies that is important and this does not require the making of discovery. However, we have consulted with our advertising experts who advise that, in order to fully analyse the object and effect of any given advertising campaign, it is necessary to access documents internal to the advertiser. Firstly, in analysing the effect of an advertising campaign, it is vital to assess the subjective response to that campaign (i.e. whether the campaign particularly appealed to young women). The only mechanisms whereby the subjective response to an advertising campaign can be fully measured is through market research. Such research is conducted by the tobacco companies through their agents.
Secondly, in order to ascertain the objective of an advertising campaign, it is necessary to have regard to what the tobacco companies sought to achieve. Expert evidence can only surmise as to the object of a given campaign and hypothesise as to the result.
Proof as to the purpose and effect of advertising undertaken by the corporate plaintiffs is vital to the issue of the likely effect of the measures sought to be impugned, with a consequential effect on the question of proportionality.
Please note that the documentation specified is required in order for the defendants to properly ascertain the nature of the claim being made against them so that the claim can be disposed of in a cost effective and fair manner.”

“We refer to your discovery letter received on Friday morning. Firstly, we do not believe discovery is required in these proceedings. The documents you are seeking are not relevant. These issues have already been dealt with in the earlier proceedings and we will be relying on the decision by Mr. Justice Kelly in those proceedings. In any event, Mr. Justice Kelly has reserved his decision on the evidence which may be adduced at trial. That will have implications for your discovery request and we do not consider it appropriate to pursue the issue until Mr. Justice Kelly has delivered his ruling on the evidential issues. We will revert after Mr. Justice Kelly has delivered this ruling.”

“At the outset, we do not believe that discovery is appropriate in this case for a number of reasons. Firstly, discovery is extremely rare in cases (such as the present case) which essentially seek declaratory relief and consist almost exclusively of legal argument concerning the validity of legislation having regard to the provisions of constitutional and EU law. Secondly, the documents in respect of which discovery has been requested on behalf of your clients are not relevant nor is it is necessary that your clients obtain such discovery in order to defend the claim or to reduce costs. Thirdly, your clients request is unnecessary and inappropriate for virtually the same reasons that led the High Court (Mr. Justice Kelly) to refuse a similar application for discovery on the part of your clients in the related proceedings referred to at paragraph 19 of the Statement of Claim.”
Application for discovery in earlier proceedings
Your clients issued a discovery request by letter dated 26th November, 2002, in related proceedings involving the same defendants and many of the same plaintiffs (3480/2002P). Your client sought discovery of three categories of documents.
Your application for discovery was dealt with by the High Court (Mr. Justice Kelly) over two days on 13th January, 2003 and 17th January, 2003. Both sides prepared written submissions for that application and oral submissions were then made before the court. Your client’s application was refused. It is clear from the judgment of Mr. Justice Kelly that the court did not consider that discovery was appropriate and that, even if the documents require to have been relevant, your client should have considered other less costly and time consuming alternatives to discovery.
In the course of his judgment, Mr. Justice Kelly observed that:
‘Advertising and marketing campaigns or market research carried out in the ten years prior to the commencement of this litigation, do not, in my view, have any relevance to what has to be tried in the case…all of the material which is sought to be obtained on discovery was generated in a different regulatory regime to that which is envisaged in the Act. The purposes of such advertising campaigns, the instructions given, the research produced, does not in my view have relevance to the issues which fall to be tried in this action. I simply do not see how they can be relevant to it. What are relevant of course are documents or material which is or was in the public domain. They would clearly be relevant but they are in the public domain. They are already available to the defendants and they do not seek anything other than this documentation. Consequently, in my view, the documents which are sought are not relevant and on the ground of irrelevance to the issues to be tried, I therefore refuse to make the order for discovery.’
Mr. Justice Kelly then went on to consider the discovery request and noted that there were other more appropriate applications which your client could have made to access the relevant materials if required.
‘If the material was relevant and was admissible, it seems to me that it would have been more expeditious and would have given rise to more saving of time and the reduction in costs if this information had been sought by other means such as interrogatories rather than discovery which would inevitably involve a trawl through ten years of documents and would both delay these proceedings and add very significantly to their costs.’
It is clear that your clients have not had regard to the terms of the judgment and have made an almost identical request in the present case (albeit restricted to point of sale advertising documentation).
Current request
We remain of the view, expressed in the earlier proceedings, that discovery is not required in these proceedings. Our clients seek declaratory orders as to the scope and validity having regard to the provisions of the Constitution of Ireland and of European Law, of various sections of the Public Health (Tobacco) Acts 2002 and 2004. The questions raised in these proceedings present matter of law; indeed it is the invariable position of the State itself before the courts that discovery is neither necessary nor appropriate in actions raising questions of constitutional or statutory construction. You will be well aware of the many occasions in which the courts have accepted the correctness of that position, and in which applicants or plaintiffs in proceedings taken against the State or State bodies, have been refused discovery on the basis of arguments to this effect.
We believe it of note that your clients have now seemingly abandoned that position (ignoring the content of the judgment delivered by Mr. Justice Kelly on the 17th January, 2003) and decided that in this case, for whatever reason, it is necessary for the purposes of defending the validity of provisions of the Acts of 2002 and 2004 that they have access to documents in the possession or power of the plaintiffs. As we understand the position adopted in your letter under reply, your clients adopt the view that in order to establish the validity having regard to the Constitution of Ireland or of European law legislation enacted by the Oireachtas, it is necessary that your clients have access to documents and information which were not before the Houses themselves when they enacted this legislation.
We must confess to finding this proposition, to say the least, surprising. By definition, the documents in respect of which discovery is sought were not before the Oireachtas when the legislation was passed. In those circumstances we fail to see how it could be asserted that the discovery requested is at all relevant.
The irrelevance of the documents in respect of which discovery is sought by your clients appears from the pleadings. Your client’s discovery request is apparently directed at the retail premises advertising ban. In that regard, the essential issue in the proceedings is whether it is lawful (having regard to the provisions of the Constitution and the law of the European Union) to prohibit the imparting of purely factual information in relation to the corporate plaintiffs product. In this regard reference may be made to paragraphs 31 and 61 of the statement of claim. In their defence, your clients have expressly pleaded that the Oireachtas had reasonable grounds for believing that the impugned provisions of the legislation were justified and proportionate and that there were reasonable grounds for the Oireachtas to consider that the restrictions on advertising were necessary and that the current restrictions were not sufficient to achieve the public health objective (at paragraphs 25, 27, 33, 34 and 35 of the defence). In their reply, the plaintiffs have admitted that the first named defendant (The Minister for Health and Children) is and was entitled to propose and the Oireachtas is and was entitled to enact legislation based on its concerns regarding the health consequences of smoking and on the belief that some restrictions on the advertising of tobacco products may achieve a public health objective or protect children. The plaintiffs do of course contend that any such legislation must be proportionate. In those circumstances, having regard to the matters actually in issue between the parties on the pleadings, it is impossible to see how the discovery requested by your clients is relevant. What the plaintiffs challenge is the proposition on the imparting of factual information in relation to the Corporate plaintiffs’ products. Bearing that in mind, we do not see how any of the documents which your clients seek by way of discovery are relevant.
We would be grateful in replying to this letter, if your clients could state clearly the position they adopt in this regard.

In the following paragraphs we set out some specific comments on the particular categories of documents sought by you. We do so without prejudice to our clients’ fundamental objections to the making of discovery in this case, which applies in relation to each of the categories of documents identified by you. We should further observe that these various objections are without prejudice to our right to contend that your request is vague, uncertain in its terms, and that the period of time referred to in the request is illustrative of its oppressive character.
We do not believe that the documentation you are looking for is relevant or necessary to enable your client to defend the proceedings issued or to save legal costs.
The purpose for which any particular point of sale advertising campaign was undertaken is immaterial to the matters in issue in the proceedings, as is the question of whether any particular advertising campaign is subjectively perceived as effective. Once again, this is a matter which stands or falls quite independently of any documentation in the possession of the plaintiff. It is also very difficult to understand how the State can contend for the validity of wide-ranging legislation based on documents concerning the minutiae of specific advertising campaigns which were not available to the Oireachtas when the legislation was being enacted. In an effort to assist the court in defining the true issues as between the parties, our clients in their reply have admitted for the purposes of these proceedings, that the Oireachtas was entitled to enact legislation based upon the belief that some restrictions on the advertising of tobacco products may achieve a public health objective as set forth in paragraph (5) of the Reply. We find it puzzling in these circumstances that you propose to convert the proceedings into some form of enquiry by the court where it will “consider the purposes for which advertising campaigns were launched by the corporate plaintiffs and the corporate plaintiff’s perception of the effects of those campaigns”.
In your letter of 9th July, 2004, you sought to contend on behalf of your clients that the discovery sought is necessary in order to ascertain the nature of the factual information relating to the corporate plaintiffs products which these plaintiffs chose to communicate to customers. With respect, this proposition does not withstand scrutiny. This information communicated to the public is evident from any such advertising itself which, by definition, is in the public arena.
You justify your request for documents over a seven year time span on a number of grounds, one being that –
“As the scope for advertising in various media narrowed by virtue of domestic and E.U. legislation over the last four years, the significance of the manner in which the industry has chosen and will continue to seek to communicate through the point of sale increases”.
It is clear from a review of the legislation that the scope for advertising in various media in Ireland has not narrowed at all in the last four years. Ireland already has a very highly regulated environment. Most forms of advertising (TV, radio, cinema etc.) have been banned for many years, the print media from 2000, and the only place where one could advertise tobacco products since 2000 was point of sale (the last material change was the ban on press advertising at that time). There have not been any significant developments at either domestic or E.U. level which have had a material impact on the media used to advertise tobacco in Ireland over that time period and your argument that discovery is required because of the narrowing of the channels during that period is flawed nor have you advanced any meaningful explanation for your request for discovery of documents brought into existence after the impugned provisions were originally enacted in 2002.
For those reasons, we believe that the discovery requested on behalf of your clients is irrelevant.
Furthermore, we believe that the period of time which you have stipulated is oppressive and unjustifiable in the context of this challenge to the 2002 and 2004 legislation. Such extensive discovery would lead to substantial cost being incurred by our clients providing documents with no obvious relevance to the real issues in this litigation.
In addition the scope of discovery you are seeking is extremely broad and will lead to significant and disproportionate costs being incurred by our client again with no apparent benefit. For example, much of the documentation which could be provided would by voluminous and repetitive. There are over 15,000 retail outlets selling tobacco products in Ireland. It would be impossible (and we submit, entirely unnecessary) to document all point of sale advertising documentation provided to each individual outlet over the course of the seven years referred to. Even if it was possible it is difficult to see such extensive and wide ranging discovery was necessary, relevant or appropriate.
You also seek documentation relating to point of sale advertising planned (but not yet executed). You have not explained why you would seek documentation for something that has not occurred. Documents for a campaign which was not in fact executed would clearly be neither relevant or necessary. There is no basis for any such requirement.”

“We note that your clients are refusing to make voluntary discovery for the following reasons:
I discovery is not appropriate in proceedings such as these;
II discovery is not relevant or necessary;
III the request for discovery ignores the terms of the ruling delivered by Mr. Justice Kelly on January 17th, 2003, in respect of the motion for discovery brought by the State defendants in the proceedings brought by your clients bearing record no. 8920P 2002 (the 2002 proceedings).
We propose dealing firstly with the latter issue.
Discovery in the 2002 proceedings
As appears from the affidavit sworn by Miss Neary grounding the application for discovery in the instant proceedings, which you will now have received, the defendants have exhibited all of the documentation relating to the discovery application made in the 2002 proceedings. Discovery was sought in those proceedings by letter dated November 26th, 2002. In response, by letter dated December 4th, 2002, your office refused to make voluntary discovery and again outlined the basis for its application (sic) for its discovery.
The discovery sought in that case differed radically from the discovery the subject of the current application to the court. Firstly, the documentation sought at category 3 of the requests made in the 2002 proceedings is not sought. Secondly, as regards categories 1 and 2, which were the principal categories of discovery, the documentation sought related to all forms of tobacco advertising. It was, as a result, much broader in its scope than the present application which by contrast is confined to documentation relating to point of sale advertising only.
Contrary to what you suggest, the defendants have not ignored the ruling of Mr. Justice Kelly. Rather, they have given extensive consideration to that ruling and discussed it at length with the advertising experts who will be called to give evidence on behalf of the defendants when this matter comes on for trial. Mr. Justice Kelly indicated in his ruling (page 32 of the transcript) that he was not of the view that the “ internal documentation” sought to be obtained on discovery was relevant, as it was generated in a different regulatory regime and the purpose of such advertising campaign was not relevant to the issues in that case. He went on to hold that what was of course relevant was documents or material in the public domain, which would not, in any event, be necessary as the defendants would be in a position to access this material.
Lastly, he indicated that, even if he had been persuaded that the documents sought were relevant, they were not necessary. In his view, the objective manifestation of the behaviour of the plaintiffs was what was important. The objective manifestation of the advertising and marketing campaigns of the plaintiffs were in the public arena and known to the defendants.
The defendants’ current application was drawn up in the light of the judgment of Mr. Justice Kelly. The ‘objective’ documentation sought at category 1 is documentation that is not available in the public domain, as no archive exists for such documentation.
Secondly, the ‘subjective’ documentation sought at category 2 is necessary having regard to the advice received from advertising experts which was not before the court on the last occasion, to the effect that the objective manifestation of the behaviour of the tobacco companies is insufficient to allow them to fully analyse the object and effect of any given advertising campaign, and to give evidence in relation to same. Consequently, they have sought to address why it is that information in addition to the objective manifestation of advertising campaigns is required to enable the experts giving evidence and ultimately the Court in determining the matter, to understand the object and effect of an advertising campaign and, as a result, to assess the reality and validity of the corporate plaintiffs’ claims that the right to communicate factual information as to their consumers has been unconstitutionally delimited by s. 33(a) of the 2002 Act, as amended.
In the circumstances, it is quite wrong to suggest that the defendants’ application for voluntary discovery is virtually the same as the application made in the 2002 proceedings and fails to have regard to the ruling of Mr. Justice Kelly.
The form of the instant proceedings
As they did in the 2002 proceedings, your client seek to insist that discovery cannot be ordered in proceedings such as these, which our clients categorise as proceedings consisting almost exclusively of legal argument. This categorisation of the proceedings fails to take account of the State defendants intention to call evidence and, in particular, the evidence of advertising experts to assist the State defendants in demonstrating the proportionality of the impugned provisions. Consequently, it is incorrect to seek to categorise these proceedings as one presenting matters of legal argument only.
You also repeat the objection to the discovery relied upon by our clients in 2002 to the effect that it is ‘inappropriate in actions raising questions of constitutional or statutory construction, for discovery to be sought, in particular in relation to information that was not before the Houses of the Oireachtas. This argument is clearly fallacious in the context of the instant proceedings and has been shown to be so. In its submissions made to Mr. Justice Kelly in the context of the discovery motion in the 2002 proceedings, the defendants asserted that they were entitled to lead evidence in support of objective justifications for legislation, even if the Oireachtas was not aware of that precise evidence or justification when the legislation was enacted. Consequently, regard may be had to all relevant evidence, even if that evidence was not formally before the Oireachtas. Mr. Justice Kelly appeared to accept this submission in that he examined the request for discovery made in the light of the principles of relevance and necessity. Further, the Supreme Court has, in its judgment of May 3rd, 2005, endorsed the relevance of contextual evidence in proceedings such as these which raised proportionality issues.
Consequently, we reject your assertion that the nature of the proceedings precludes the making of discovery.

Relevance and Necessity
(i) Objective Documentation
At the outset we note that in your lengthy letter you fail to address the State defendant’s assertion that it is not possible for the State defendants to collate information as to the point of sale advertising campaigns run by the Corporate plaintiffs. You baldly assert that the information communicated to the public is in the public arena. However, our advertising experts have indicated that there is no archive or reference point for such material. Consequently, it is not in the public domain other than insofar as aspects of current campaigns could be viewed in grocery shops and garage forecourts throughout the country. It is clear that information in relation to the scope of advertising campaigns actually run is relevant and necessary to these proceedings but information in relation to past campaigns cannot be obtained by the defendants other than through the discovery process.
This information is sought in respect of the period from 1998 onwards. This request is justified on the basis that the regulatory environment has changed in that period. Your clients simply assert that the regulatory environment has not changed in the last four years. The ban on print media advertising was introduced in 2000. For completeness we are attaching a summary of legislation (other than E.U. directives) adopted since 1998. Your client accepts that a material change in advertising was the ban on press advertising in 2000. It is for that very reason that discovery in respect of the period prior to 2000 is sought. The defendants seek discovery commencing at the time when point of sale advertising took on a vital importance for the tobacco industry, i.e. from when the ban on print advertising was first envisaged, in approximately 1998.
Insofar as your clients contend that the discovery sought is oppressive because the discovery would be voluminous and repetitive if documentation in relation to the campaigns run in each of the 15,000 retail outlets selling tobacco products in the State were to be discovered, the defendants are happy to clarify that they do not seek and have not sought such broad discovery. They seek documentation in relation to each campaign, not in relation to each retail premises. Consequently repetition can be avoided and the scope of the discovery is clearly not oppressive.

We note that, on the issue of the internal or subjective documentation your clients simply assert that (a) the purpose for which a campaign is run is irrelevant and (b) the effect of any campaign is irrelevant. We respectfully disagree for the reasons outlined in the letter from Professor Hastings and Professor Pollay in their letters exhibited at exhibits EN4 and EN5 respectively to Ms. Neery’s affidavit. We note that you assert that ‘this is a matter which stands or falls quite independently of any documentation in the possession of the plaintiffs’. We take this to mean that an analysis of point of sale advertising can be conducted on the basis of an examination of the published campaign. We note also that you do not purport to rely on any particular advertising expertise in support of this proposition, which we cannot accept as correct.
In the circumstances, the State defendants reject the arguments put forward by your client as a basis for refusing discovery in this case. Our clients intend to pursue their application for discovery for the reasons outlined in Ms. Neery’s affidavit in the letters of Professor Hastings and Professor Pollay and in this letter.”

“I confirm that the categories of documentation referred to in the defendants request for voluntary discovery were drawn up with my input and I believe that discovery of these categories of documentation is absolutely necessary in order for the court to assess the reality and validity of the claims made by the tobacco companies in these proceedings regarding the manner in which they have used point of sale advertising.”

“Every document relating to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary.”

“… There is nothing in that statement which is intended to qualify the principle, that the document sought on discovery must be relevant, directly or indirectly to the matters in issue between the parties in the proceedings. Furthermore, an applicant for discovery must show it is reasonable for the court to suppose that the documents contain information which may enable the applicant to advance his own case or to damage the case of his adversary. An applicant is not entitled to discovery based on mere speculation or on the basis of what has been traditionally characterised as a fishing expedition.”

“(i) The court must decide as a matter of probability as to whether any particular document is relevant to the issues to be tried. It is not for the court to order discovery simply because there is a possibility that documents may be relevant.
(ii) Relevance must be determined in relation to the pleadings in the specific case. Relevance is not to be determined by reasons of submissions as to alleged facts put forward in affidavits in relation to the application for further and better discovery unless such submissions relate back to the pleadings or to already discovered documents. It should be noted that Order 31, r. 12 of the Superior Court Rules specifically relates to discovery of documents ‘relating to any matter in question therein’.
(iii) It follows from the first two principles that a party may not seek discovery of a document in order to find out whether the document may be relevant. A general trawl through the other parties’ documentation is not permitted under the rules.
(iv) The court is entitled to take into account the extent to which discovery of documents might become oppressive, and should be astute to ensure that the procedure of discovery is not used as a tactic in the war between the parties.”

“The crucial consideration is, in my judgment, the meaning of the expression ‘disposing fairly of the cause or matter.’ Those words direct attention to the question of whether inspection is necessary for the fair determination of the matter, whether by trial or otherwise. The purpose of the rule is to ensure that one party does not enjoy an unfair advantage or suffer an unfair disadvantage in the litigation as a result of a document not being produced for inspection. It is, I think, of no importance that a party is curious about the contents of a document or would like to know the contents of it if he suffers no disadvantage by not seeing it and would gain no litigious advantage by seeing it. That, in my judgment, is the test.”

“It may not be wise to substitute a new term of art ‘litigious advantage’, for the words of the rule. Nonetheless, the discussion gives guidance as to the context in which the matter has to be considered. Within that context, the court has to reach a conclusion as to the likely effect of the grant or refusal of the discovery on the fair disposal of the litigation.
The change made to Order 31, r. 12, in 1999, exemplifies, however, growing concern about the dangers of unnecessarily costly and protracted litigation and, in particular, the burdens on parties and the courts arising from excessive resort to automatic blanket discovery. The public interest in the proper administration of justice is not confined to the relentless search for perfect truth. The just and proper conduct of litigation also encompasses the objectives of expedition and economy.
The court, in exercising the broad discretion conferred upon it by Order 31, r. 12(2) and (3), must have regard to the issues in the action as they appear from the pleadings and the reasons furnished by the applicant to show that the specified categories of documents are required. It should also consider the necessity for discovery having regard to all the relevant circumstances, including the burden, scale and cost of the discovery sought. The court should be willing to confine categories of documents sought to what is genuinely necessary for the fairness of the litigation. It may have regard, of course, to alternative means of proof, which are open to the applicant. These may, no doubt, include the possible service of notices to admit facts or documents. But there are two sides to litigation. The behaviour of the opposing party is relevant. That party may, for example, have made or may offer to make admissions of facts, and thus persuade a court that discovery on some issues is not necessary. This is, perhaps, axiomatic. Those facts will no longer be an issue.”

“The purpose of the amendment (to Order 31, r.12) was so that the Master or the court as the case may be and the respective parties would focus on what documents were really needed for the purpose of advancing the case of the moving party or defending as the case might be.”

“It seems to me that in certain circumstances a too wide ranging order for discovery may be an obstacle to the fair disposal of proceedings rather than the converse. As Fennelly J. pointed out the critical question is whether discovery is necessary for ‘disposing fairly of the cause or matter’. I think it follows that there must be some proportionality between the extent or volume of the documents to be discovered and the degree to which the documents are likely to advance the case of the applicant or damage the case of his or her opponent in addition to ensuring that no party is taken by surprise by the production of documents at a trial. That is not to gainsay in any sense that the primary test is whether documents are relevant to the issues between the parties. Once that is established it will follow in most cases that their discovery is necessary for the fair disposal of those issues.”

(a) Criminalise the imparting of any factual information concerning the corporate plaintiff’s products,
(b) Prohibit the provision of information even when requested by a customer or consumer,
(c) Delimit the right of consumers to be provided with information so as to enable them to make a choice,
(d) Interfere with the property rights of the corporate plaintiffs,
(e) Having regard to both breadth and lack of specificity unjustly discriminate between persons engaged in the business of tobacco products on the one hand and non tobacco products on the other,
(f) Are too vague and broad,
and
(g) Exceed any permissible discretion conferred on the State under relevant European Directives.

“Information as to the name of the brand, type and/or price of tobacco products or variant thereof or any new products, or as to their characteristics and attributes or as to their availability or existence, or as to brand history, or as to the name of the manufacturer of such products, or relating to or comprising the trademarks, emblems, images or logos by reference to which such products are marketed or sold.”

“33. There were reasonable grounds for the Oireachtas to consider that the restrictions on advertising provided for by s. 33(a) was necessary and 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 recommended 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% of children in the 15 -17 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.”

“I have seen and reviewed several types of materials to assess the extent to which tobacco marketing practices in Ireland are similar to that seen elsewhere, or are unique to Ireland. For example, I read Cigarette Advertising and Children Smoking (Ireland), Campaign Analysis, 1990 – 2000, and the companion report by Prof. Farrel Corcoran, Cigarette Advertising and Children Smoking (Ireland) for which I authored a preface. I have also reviewed A National Anti Smoking Strategy: A Report On Health and Smoking, published by the parliament of Ireland (downloaded via internet on October 6th, 2004). In addition I have also reviewed the Public Health (Tobacco) Act, 2002 and the Public Health (Tobacco) (Amendment) Act, 2004, along with a ‘Background Note – Legislative History of Tobacco Control in Ireland’. I have also seen a ‘Background Brief for Expert Witnesses’ prepared by the State’s legal team and have seen the pleadings exchanged in these proceedings, and a request for voluntary discovery (July 9th, 2004) and the ruling of Kelly J. made thereon.”

“This exposure to the situation in Ireland and the current proceedings leads me to conclude that the industry’s marketing practices, the public policy response, and the likely consequences of each, as anticipated by an understanding of the principles of marketing, in Ireland are likely to be very similar to that experienced and foreseen in other jurisdictions such as the U.S., U.K., and Canada. Nothing I have seen leads me to conclude that Ireland is so unique as to preclude the application of insights about tobacco marketing, its purposes and consequences, as acquired from other jurisdictions. Industry actions also rely on this belief.”

“Advertising and marketing campaigns or market research carried out in the ten years prior to the commencement of this litigation do not, in my view, have any relevance to what has to be tried in this case.
All of that material which is sought to be obtained on discovery was generated in a different regulatory regime to that which is envisaged in the Act. The purposes of such advertising campaigns, the instructions given the research produced, does not in my view have relevance to the issues which fall to be tried in this action. I simply do not see how they can be relevant to it.
The motivation of the plaintiffs in devising or implementing marketing or advertising campaigns in the past cannot in my view be a matter of relevance in the present case.
It is off course correct that para.25 of the amended defence contends that –
“The legislature was entitled to have regard to statements made by the first defendant to the effect that the tobacco industry generally has consistently striven to frustrate and undermine tighter regulation of tobacco and has, despite knowledge of the dangerous and addictive nature of tobacco products, denied that nicotine is addictive, that smoking and second hand smoke cause disease and death”.
That paragraph of the defence also contends that the legislature was entitled to have regard to the fact, that none of the Irish cigarette manufacturing companies have publicly made available papers or internal company documentation to enable the State or the general public to be informed of research specifically undertaken by those companies.
Whilst that is asserted in the defence it is clear from the correspondence that the defendants do not seek these documents with a view to assisting them in bolstering that defence. Rather they seek the documents with a view to seeing whether the campaigns in question were availed of, with a view to communicating the factual information, the communication of which the corporate plaintiffs claim is unconstitutionally delimited by the Act, and to assess the nature of the information which the corporate plaintiffs in fact communicated and which they chose not to communicate in the past.
I am not persuaded that these species of documents are relevant to the issues which fall to be tried in that regard…I cannot see how the internal documents of the type which are sought here can be relevant to that issue.”