The High Court has refused an application by the State defendants for discovery of documents about tobacco companies’ point of sale advertising campaigns, finding the requested material neither relevant nor necessary for the fair disposal of the proceedings.
The application sought two categories of records: samples of advertising displayed in retail outlets from 1998 onwards, and internal documents concerning campaign instructions, objectives and effects. The second category included briefs, budgets, planning documents and market research. The defendants had narrowed their request for the first category to samples during argument.
The corporate plaintiffs are challenging provisions of the Public Health (Tobacco) Acts 2002 and 2004 and related regulations. Their claims include that the legislation unlawfully restricts the communication of factual information about tobacco products. The State defendants pleaded that the restrictions were justified and proportionate to public health objectives, including protecting children and young people.
The defendants argued that advertising records could help establish the purposes and effects of campaigns and assess the plaintiffs’ claims. They relied on opinions from marketing professors, who said the documents were necessary to assess how point of sale advertising had been used. The plaintiffs disputed the request, arguing that the material was irrelevant, costly to produce and unnecessary, and that an earlier discovery ruling between the parties applied.
Mr Justice Kelly held that the documents could not be relevant to the pleaded justification that the Oireachtas had reasonable grounds for enacting the measures. He noted that the requested materials were not known to the defendants or parliament when the legislation was passed. He also considered campaign purposes and subjective assessments of effectiveness immaterial to the issues the court would decide at trial.
The judge said the defendants had not shown necessity either. Their experts had prepared extensive evidence without the requested records, and another expert’s evidence also addressed tobacco marketing in Ireland without suggesting the records were needed. The court further found that the reasoning behind its unappealed 2003 ruling on discovery in related proceedings applied to the current request.
The court therefore refused the discovery orders. The ruling concerned access to the requested documents; it did not determine the merits of the plaintiffs’ challenge to the legislation.