Ipsofactoj.com: International Cases [2006] Part 9 Case 10 [SCIre]



Minister for Health & Children

- vs -

P.J. Carrol & Co Ltd






3 MAY 2005


Mr. Justice Geoghegan

  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:


    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:


    be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;


    impair the right as little as possible;


    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] IR 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.


Heaney v Ireland [1994] 3 I.R. 593

Ryan v The Attorney General [1965] IR 294

Enright v Ireland [2003] 2 I.R. 321

In re Article 26 of the Constitution and the Private Rented Dwellings Bill 1981 [1983] I.R. 181


Irish Constitution: Art.26

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