The Supreme Court dismissed two appeals brought by the State parties in a constitutional challenge to restrictions on tobacco advertising. One appeal concerned keeping the action in the High Court’s Commercial List; the other sought discovery of tobacco companies’ point-of-sale advertising records.
The judgment, delivered by Mr Justice Geoghegan on 1 June 2006, gives reasons for decisions the court had already made unanimously. It dismissed both appeals.
The first appeal challenged the High Court’s refusal to transfer the action from the Commercial List to the ordinary High Court list. The Supreme Court held that the State could have appealed the original decision to place the case in the Commercial List but had not done so. It found no relevant change in circumstances to justify transferring it now. The court did not decide whether the action originally met the legal categories for inclusion in the Commercial List. It said that issue did not need to be decided in this appeal.
The second appeal concerned a request for discovery of documents about point-of-sale advertising in Ireland from 1998 onward, including advertising plans, agency instructions, campaign budgets and market research. The records were sought in a challenge involving section 33A of the Public Health (Tobacco) Act 2002, inserted by the 2004 amendment Act. At the time of the judgment, section 33A was not in operation; if brought into effect, it would criminalise point-of-sale advertising beyond factual information about products.
The Supreme Court disagreed with the High Court on relevance. It considered the requested records relevant because they could indicate whether the advertising went beyond communicating facts. The judgment also said companies’ intentions and policies could be relevant to that question.
However, the court agreed that discovery was unnecessary. The State intended to rely on three expert witnesses. Although two experts from outside Ireland wanted the documents because they were less familiar with the Irish market, the court said that market knowledge could be gained through ordinary observation at points of sale. It also noted that the experts had not said they could not give evidence without the records, and that other evidence could address potentially harmful advertising.
The Supreme Court therefore dismissed the discovery appeal: the documents were relevant but unnecessary. The judgment decided only these appeals about transfer and discovery; it did not determine the constitutional challenge to section 33A.