Tobacco firms drop case against new laws

A SUDDEN decision yesterday by tobacco companies and others to abandon their lengthy legal action over new laws restricting the advertisement and promotion of cigarettes and other tobacco products has cleared the way for the introduction of the disputed legislation.

The companies also now face a substantial legal costs bill, estimated at several million euro, after Mr Justice Peter Kelly granted their application to discontinue their action. It had been due to open in the Commercial Court next Tuesday and to run for at least six weeks.

Lawyers for the Minister for Health and the State said they had learned of the proposal to discontinue just earlier yesterday.

The challenge was to parts of the Public Health (Tobacco) Act 2002, as amended by the proposed new restrictions, and was initiated in April 2004 by 16 tobacco companies, others involved in supplying cigarettes to vending machines and a newsagent representing retail outlets in the State.

The plaintiffs claimed the disputed provisions of the 2002 Act were unconstitutional, in breach of EU law and the European Convention on Human Rights, and would involve significant financial losses for them if they came into effect.

Yesterday, Paul Gallagher SC, for all the plaintiff companies, said his clients were not proceeding with the action and wished to discontinue the proceedings. They also accepted responsibility for the defence costs.

Pat Hanratty SC, for the State, said his side was not consenting to the action being discontinued and wished to have an order dismissing it. This was a root and branch attack on the legislation in question under the Constitution and EU law and his side wished to have finality in the matter and to avoid another similar challenge perhaps being brought. His side had just been told at this late stage of this development in the case, counsel added.

Mr Gallagher said he was surprised at the State’s reaction and that the normal order in these circumstances was to discontinue. The idea that the case would manifest itself again through perhaps a related company was “a nonsense”.

His side would prefer to have the case discontinued rather than dismissed.

Ruling on the application, Mr Justice Kelly said he would give the plaintiff companies an order to discontinue their proceedings and then make an order striking out the action in its totality. An order to dismiss an action occurred usually after the merits of a case were determined and this had not occurred.