The High Court refused a declaration sought by Malone Engineering Products Limited that its Freshwall structure was exempt from the smoking ban as an outdoor area under tobacco-control legislation.
Mr Justice Roderick Murphy delivered judgment on 21 July 2006. Malone, the structure’s designer and manufacturer, had asked the court to declare that Freshwall was subject to the conditions in section 47(7)(d) of the Public Health (Tobacco) Act 2002, as amended in 2004. Other reliefs sought in the proceedings were not pursued.
The dispute concerned an exception for a covered outdoor part of premises where no more than 50% of its perimeter is surrounded by walls or similar structures. Malone relied on technical reports and evidence about the panels’ open area and ventilation. Its witnesses described the structure as highly ventilated and argued that its openings met the statutory threshold.
The Health Service Executive relied on an engineer’s inspection of the Freshwall installation at the Kinsealy Inn. The engineer said the modular panels surrounded the entire perimeter and that fittings—including a counter, mirror and radiators—further reduced the open area. He also considered the furnished space to resemble a typical lounge bar rather than an outdoor premises. Those were the engineer’s opinions, not separate court findings about the installation’s compliance.
The judge considered the statutory wording, the evidence about the installed structure and promotional materials describing Freshwall as providing an indoor environment outdoors and as an indoor solution to smoking regulations. He said the application appeared to seek a ruling about the product in the abstract, but the court could not decide the issue without a factual setting. On the evidence before him, he was not satisfied that the structure was outdoor in the ordinary sense. He also considered that it presented as a wall and a continuous structure.
The court said the statutory test did not require it to assess the area or volume of the structure, so ventilation evidence did not determine the interpretation. The judgment refused the reliefs sought; it did not grant product approval or give an undertaking about whether enforcement agencies would prosecute in a particular case.