THE HIGH COURT
2002 No. 8920P
PJ CARROLLS & CO LTD AND OTHERS
AND
THE MINISTER FOR HEALTH AND CHILDREN, IRELAND, THE ATTORNEY GENERAL AND THE OFFICE OF TOBACCO CONTROL
……..

2002 No. 8923P
PHILIP MORRIS HOLLAND BV AND OTHERS
AND
THE MINISTER FOR HEALTH AND CHILDREN, IRELAND, THE ATTORNEY GENERAL AND THE OFFICE OF TOBACCO CONTROL
Heard before Mr. Justice Kelly on Friday 17th January 2003

APPEARANCES
APPEARING FOR THE MINISTER FOR HEALTH AND CHILDREN AND OTHERS
MR CLARKE S.C, MR McGUINNESS S.C. and MR HOGAN B.L.
instructed by
The Chief State Solicitors Office, Dublin.
APPEARING FOR PJ CARROLS & CO LTD
MR GLEESON S.C., MR GALLAGHER S.C., MR O'DONNELL S.C. and MR BARNIVILLE B.L.
instructed by
A & L Goodbody Solicitors, 'Dublin 1.
APPEARING FOR PHILIP MORRIS HOLLAND BV IRELAND
MR GORDON S.C. and MR COLLINS S.C.
instructed by
Matheson Ormsby Prentice, Dublin 2.

	MR JUSTICE KELLY: I am going to give my ruling in the Carroll  litigation first and then I will proceed to deal with the Morris 5 case. In this case there are two motions before the Court both seeking	discovery, one brought by the Defendants and the other brought by the Plaintiffs. As the Plaintiffs have made it clear that they will not pursue their application for discovery, save in circumstances where the Defendants have been successful on theirs, I propose to give my ruling on the Defendants' application for discovery first.
	Each of the Corporate Plaintiffs in this case, save the Sixth, are engaged in the business of the manufacture, sale, supply and distribution of tobacco products in the Member States of the European Union. The Tenth Plaintiff is-a businessman involved in the business of the supply of cigarettes by means of vending machines, primarily in licensed premises in the State. The Eleventh Plaintiff is a smoker and the owner of a news	agency business known as Dolans in Marino in Dublin. 
	In these proceedings the Plaintiffs challenge the constitutionality of certain provisions of the Public Health Tobacco Act 2002 which I will, in the course of this ruling, refer to as "the Act". The long title of that Act makes it clear that it has been enacted to provide for the establishment of a body to be known as the Office of Tobacco Control, to provide for the registration of persons engaged in the business of selling tobacco products by retail; to provide for a prohibition on the advertising of tobacco products; a prohibition on the sponsorship by manufacturers and importers of tobacco products, and prohibitions on certain marketing practices in relation to tobacco products and also to provide for the prohibition or restriction of tobacco smoking in certain places.  
	The Act also repeals two earlier enactments of 1978 and 1988, namely the Tobacco Products (Control of Advertising Sponsorship and Sales) Promotion Act 1978 and the Tobacco (Health Promotion 11 and Protection) Act 1988. 
	Part 3 of the Act deals with the regulation and control of sale, marketing and smoking of tobacco products. It is in respect of the enactments which are contained in Part 3 that the Plaintiffs in this litigation address their complaints. 
	In summary, they contend that the restrictions which are contained in that part, in particular those on advertising, are unconstitutional because it is said, they constitute a disproportionate interference with the Plaintiffs'  constitutional right to free speech and communication. In addition, it is said that the restrictions on what is called 'brand extension' and the requirement for closed containers for sale are an interference with the Plaintiffs' property rights. 
	Extensive pleadings have been exchanged in the litigation, pursuant to directions given by the Court, and it is at this stage with the pleadings closed that the Defendants make this  application for discovery.
	In order to understand how the application for discovery comes to be made and indeed resisted, I will have to refer to some extent, to the pleadings and the correspondence which has been exchanged. Before doing so., I should set out the species of documents which the Defendants seek to obtain from the Plaintiffs on this application. They are set forth in a letter of 26th November 2002 and they fall into three categories. The  first category is as follows, and I quote, the Defendants seek from the Plaintiffs:
	"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 all forms of promotional, informational, marketing or advertising campaigns (including indirect advertising campaigns) within Ireland over the past ten years including, in particular, the following documentation:
	(a) Client agency contact reports;
	(b) Client briefs;
	(c) Creative briefs;
	(d) Media briefs;
	(e) Media scheduler; (sic)
	(f) Advertising budgets;
	(g) Market research reports relating to each campaign;
	(h) Reports which establish links to other communication strategies such as public relations; and
	(i) Reports which establish links between the advertising campaign and marketing strategies." (Quoted) 

	The second category of documents sought is as follows and I quote:
	"All documentation setting out market research conducted over a ten year period prior to the institution of the herein 	proceedings relating to the marketing and/or consumption of tobacco products by new smokers, including, in particular, but  not limited to persons under 18 years of age." (Quoted) 
	The third category of documentation sought is set out in two parts:
	"(a) All contractual documentation between the eleventh named plaintiff and the first and/or second and/or seventh named	Plaintiffs; and the first, second and seventh named Plaintiffs' contracts to supply the eleventh named Plaintiff; and
	(b) The first, second and seventh named Plaintiffs' standard contracts or arrangements or agreements to fit gantries in relation to retail sales of tobacco products." (Quoted) 
	They are the documents that are sought on this discovery  application.
	I think it is convenient here to summarise the legal principles which are applicable to an application of this sort. The provisions of Ord 31 r.12, make it clear that,
"any party to litigation may apply to court by motion for an order directing any other party to any cause or matter to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question in the proceedings." (Quoted)	
	The term "relating to", which is used in that rule, has in the context of documents been held to include, and I quote here the well-known quotation from the Peruvian Guavo case, a document that:
	"...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 or which may fairly lead him to a train of inquiry which may have either of those two consequences." (Quoted)
Peruvian Guavo is reported at (1882) 11 QB 55 and was followed in this jurisdiction on many occasions but, in particular, in the decision in Brooks Thomas -v- Impact Ltd (1999) 1 Irish Law 9 Reports Monthly 171.
	I turn now to a consideration of the defence which has been delivered in the proceedings. The Defendants contend that the	legislation which is sought to be impugned does not suffer from	any constitutional infirmity. In particular, it is said that the restrictions complained of, are a proportionate response to the mischief created by the consumption of tobacco products. 
	The defence contends that approximately 7000 people die	prematurely every year in this State from smoking related diseases and, in these circumstances it is said, that the legislature had reasonable grounds for believing that the Act 22	was justified and proportionate. 
	It is said, furthermore, that the legislature was entitled to have regard to a significant body of evidence, both scientific and medical opinion, which concludes that smoking causes a wide variety of pulmonary and cardiovascular diseases whilst increasing the risk of cancer, late onset diabetes, cataracts, hip fractures and periodontal disease.
	It is clear from that defence which has been delivered, that at trial the Defendants will seek to lead evidence in support of these contentions. 
	I now wish to turn to the reply which was delivered. The Plaintiffs in the course of that reply make a number of  admissions for the purposes of these proceedings. Of particular significance in my view, is the admission and acceptance that	the Defendants believe, that is to say the acceptance by the Plaintiffs that the Defendants believe that the consumption of	tobacco products is injurious to human health and that accordingly the legislature was entitled to enact legislation based on that belief and, furthermore, that such legislation can interfere with the Plaintiffs' constitutional rights provided that it does so in a proportionate manner. 	The Plaintiffs further admit, for the purposes of these proceedings, that the First Defendant is entitled to propose, and the legislature 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 and, that such legislation can interfere with the Plaintiffs' constitutional rights, provided that it does so in a proportionate manner.	In replies to particulars which are dated 15th November 2002, the Plaintiffs went, it seems to me, somewhat further in their admissions because, they say, and I quote:
"The Plaintiffs agree that the chemicals referred to at Schedule of the defence have been identified as being present in trace quantities in mainstream smoke. In any event, this is not an issue in the proceedings because, for the purpose of these proceedings, the Plaintiffs do not dispute the health consequences of smoking as alleged by the Defendants." (Quoted)
In the light of those admissions there may of course be a dispute at the trial, as to the entitlement or the necessity for evidence of the type envisaged from those portions of the defence which I have summarised being led, but that is a matter upon which I express no opinion whatsoever at this stage. Now in accordance with the normal practice, there was, prior to the issue of the motion which I am considering, a letter of request for the documents, setting forth the reasons for which they are required. That was responded to and in turn gave rise to a further response from the defendants by means of a letter of 19th December 2002, which is of some importance. In this letter of 19th December 2002, the reasons for which discovery is sought are set forth with commendable clarity. 
Insofar as Categories 1 and 2 are concerned, the letter reads as follows, and I quote:
	"In relation to categories 1 and 2, which essentially constitute information relating to the Corporate Plaintiffs' promotion and	advertising of their products, the Defendants contend that such information is clearly discoverable, not because it is required to justify the 2002 Act and to bolter the Defendants' case, but rather because it is required to test the assertions made by the Plaintiffs that the effect of the 2002 Act is disproportionate, in particular, insofar as the 2002 Act interferes with the Plaintiffs' freedom of expression. The letter of November 26, 2002 [which was the original request] is very clear: in relation to category 1, the Defendants claim to be entitled to ascertain the purposes for which certain marketing campaigns were launched in order to ascertain whether those campaigns were availed of with a view to communicating the factual information, the communication of which the Corporate Plaintiffs claim that the impugned sections of the 2002 Act unconstitutionally delimits. Secondly, the Defendants claim to be entitled to this information to assess the nature of the information which the Corporate Plaintiffs in fact communicated and the information which they chose not to communicate. This is relevant in assessing the purpose for which any communication to the public was made." (Quoted)
	The letter goes on:
"Consequently, the discovery sought is clearly designed to test the assertions made repeatedly by the Corporate Plaintiffs that the 2002 Act will prevent them from communicating factual information such as the name of the brand, type or price of tobacco product, or its characteristics or attributes etc,. The Defendants contend that the manner and extent of the communication of factual information by the Corporate Plaintiffs to the eleventh named Plaintiff and/or consumers generally is highly material in this regard.". (Quoted) 
  Later on, the letter goes on to say, and I quote:
"The Defendants agree that the question of the purpose for which any particular advertising or marketing campaign was embarked on may be immaterial to the public health effect of smoking. However, it is not immaterial to an assessment of the reality of the Corporate Plaintiffs' claim to breach of their alleged rights to freedom of expression. To that extent, you are quite correct that the Defendants propose that the Court should conduct an enquiry as to the reality of the Plaintiffs' claim." (Quoted)
	Insofar as the Third Category of documents is concerned, the letter says: 
"In relation to category 3, again, your clients appear to have misunderstood the basis upon which the Defendants seek this category of Discovery. The Defendants clearly state in the November 26 letter that the Discovery sought relates to the Corporate Plaintiffs' claim that retailers, including the eleventh named Plaintiff, will be adversely affected by the impugned sections and will, in particular, incur expenditure in relation to the cost of fitting out his shop. The Defendants seek Discovery to ascertain who paid for the gantries installed in retailers' shops and the manner in which the said gantries were availed of for the display and communication of factual information relating to tobacco products. It is difficult to understand the Plaintiffs' contention that the categories of  documents sought enjoy a 'remote connection' to these issues."  (Quoted)
	I propose to deal immediately with Category 3, because in the course of the hearing it seemed to me that a claim for discovery of the wide ambit which was made, with a view to ascertaining information as to who paid for the gantries installed in	retailers shops, and the manner in which the gantries were availed of for the display and communication of factual information relating to tobacco products, was wholly disproportionate. I suggested, and I am glad to note that the parties now agree that that information can be sought and obtained by means of a simple notice for particulars and a	response thereto. So Category 3, insofar as the discovery application is concerned fades out of the picture at this stage.
	I must, however, deal with the question of principle which arises in respect of Categories 1 and 2. Now applying the legal test which is applicable to discovery being ordered, I have to be satisfied that the documents sought are relevant and are necessary, either for disposing fairly of the cause or matter or for saving costs. The first issue therefore is, are the documents sought relevant to the issues which will fall to be  tried in this litigation? 
	From the Defendants' point of view it is clear from the parts of the letter of 19th December, from which I have just quoted, that they are not seeking these documents with a view to assisting them in justifying the Act, nor do they do so, as they say themselves, to "bolster their case". Rather they seek these documents to test assertions made by the Plaintiffs to the effect that the Act is disproportionate in its effects, having regard to the Plaintiffs' alleged constitutional rights. 
	Now, it is clear that the Act creates a new legislative atmosphere in which the Plaintiffs must conduct their business affairs in the future. The Act creates a different regime to that which existed in the past.
	At the trial, it seems to me, the Plaintiffs will have to lead evidence as to how this new regime is going to impact upon them. To be successful in this litigation, they would have to demonstrate that the constitutional rights which they assert are improperly interfered with by the terms of the Act. The evidence which they lead, in support of those contentions, will of course be open to cross-examination. But I cannot see how documents in Categories 1 or 2 can be regarded as relevant	for the purposes of that exercise.
	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 of course correct that paragraph 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 secondhand smoke cause disease and death." (Quoted)
	That paragraph of the Defence also contends that the legislature	was entitled to have regard to the alleged 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 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, which the Corporate Plaintiffs claim is unconstitutionally delimited by the Act, and to assist in ascertaining 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. In coming to that conclusion, I do not lose sight of the argument which was made this morning, for the first time in reply, which was in due course responded to by an additional opportunity being given to the Plaintiffs to reply, concerning paragraph 22 of the Reply, that paragraph reads:
"The Plaintiffs deny that legislation which is unconstitutional can be rendered constitutional by virtue of earlier similarly unconstitutional legislation. The particulars of 1978 Act and the 1988 Acts, referred to in paragraph 28 of the defence, are denied." (Quoted). 
	If, as has been said by Mr Clarke, it is being contended that the Plaintiffs have lived with and did not object to a	restriction on their rights under the 1978 or the 1988 Act or both such Acts, and made no complaint concerning such restriction, but now seek to do so in respect of the same restrictions that are repeated in this Act, that is a matter which would clearly go to the weight to be given to such a complaint, it being made many years after the enactment of the earlier two pieces of legislation. But I cannot see how the internal documents of the type which were sought here can be relevant to that issue.
	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, and are already available to the Defendants since they do not seek anything other than this internal 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.
	Even if, however, I had been persuaded that the documents might be regarded as relevant, I am not satisfied that they are necessary for the fair disposal of the action. That is so, because in my view, the objective manifestation of the behaviour of the Plaintiffs is what is the important issue here. The objective manifestation of the advertising and the marketing campaigns of the Plaintiffs have been in the public arena and are known to the Defendants. Indeed, the Defendants have expressly pleaded the matters to which the legislature had regard in enacting the legislation.
	In these circumstances, it seems to me, that even if it could be said that the documents might have a relevance, I do not see that a case has been made out for discovery, having regard to the crucial nature of documents in the public arena, as distinct from the minor importance of anything that was going on behind closed doors, albeit in an entirely different legislative atmosphere.
	Furthermore, even if I am wrong on both counts, it seems to me that discovery being sought over a ten year period is disproportionate, having regard to the information which is sought to be obtained. If the material was relevant and was permissible, it seems to me 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 that discovery, which will inevitably involve a trawl through ten years of documents and will both delay these proceedings and add very significantly to their costs.
	Accordingly, in my view, for these reasons, the Defendants motion for discovery ought to be refused, and that is the order which I make. In those circumstances, the Plaintiffs' application for discovery will not be proceeded with, having regard to what I was told and, therefore, insofar as that is concerned, no order will be made on that motion other than one striking out the motion itself.  
	Insofar as the Plaintiffs and Defendants in the Philip Morris litigation is concerned, it seems to me that the reasoning which I have already attempted to set forth (and the result) is the same and applies with equal if not more force in the context of this litigation. I say that it may apply with more force because, if anything, the concessions made by the Plaintiffs concerning the adverse affects of tobacco products seem to me to be broader and wider in this litigation. 
	Furthermore, the issue which arose today concerning paragraph 22 of the reply of the Plaintiffs in the Carroll's litigation does not seem to have a relevance in the Philip Morris litigation which is narrower and more focused in its scope. For the same reasons as I have given for refusing the discovery application in the Carroll litigation, I will likewise refuse discovery in the Philip Morris litigation. There is no motion in the Philip Morris litigation seeking cross-discovery, so that simply does not arise.
	So the order will be in the Carroll litigation, the application of the Defendants will be refused and the Plaintiffs' application for discovery will be struck out. In the Philip Morris litigation, the Defendants' motion for discovery will be refused and, as I say, there is no cross motion for discovery there so that simply does not arise.