British American Tobacco (UK) Ltd v Secretary of State for Health
| Jurisdiction | England & Wales |
| Judge | Lord Justice Green |
| Judgment Date | 20 December 2018 |
| Neutral Citation | [2018] EWHC 3586 (Admin) |
| Docket Number | Case No: CO/2706/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 December 2018 |
[2018] EWHC 3586 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Green
Case No: CO/2706/2015
The Queen on the application of
The Queen on the application of
The Queen on the application of
The Queen on the application of
Approved Judgment
A. Application under CPR 5.4C(2) for disclosure of court documents to a third party
There is before the Court an application under CPR 5.4(C)(2) for disclosure from the Court records of certain documents relied upon by the parties in the series of claims for judicial review brought by the tobacco industry and by certain manufacturers of tobacco papers. Judgment was given on 19 th May 2015: cf British American Tobacco et Ors v Secretary of State for Health (Action on smoking and health, intervening) [2015] EWHC 1169 (“the Judgment”). Appeals by the claimants were subsequently rejected by the Court of Appeal. Permission to appeal to the Supreme Court was refused.
The claims sought to have declared unlawful legislation that the Secretary of State, the Defendant to the proceeding, was proposing to introduce regulating the packaging of tobacco products. Paragraphs 1 and 2 of the Judgment described the issue in the following way:
“1. These applications for judicial review are brought by manufacturers who represent the major part of the world's supply of tobacco products. Legislation was enacted by Parliament which conferred upon the Secretary of State the power to lay before Parliament, for its consideration and promulgation, regulations which restrict the ability of the tobacco companies to advertise their brands on tobacco packaging or upon tobacco products themselves. Parliament duly promulgated The Standardised Packaging of Tobacco Products Regulations 2015 (“ the Regulations”). These specified the 20 th May 2016 as the day upon which they became effective. The Claimants challenge the Regulations as unlawful under international law, EU law and domestic common law.
2. The decision by Parliament to introduce the Regulations was in large measure in furtherance of the policy laid down by the World Health Organisation (WHO) in a singular treaty of 2004, the Framework Convention on Tobacco Control (“ FCTC”). This is one of the most widely endorsed treaties in the history of the UN. In this convention the WHO has laid down a series of control measures some of which are said to be mandatory and a further series of measures which contracting states are encouraged to adopt, one of which is a prohibition on advertising on packaging and upon tobacco products. This latter measure is known as “standardised packaging”. At base it involves a substantial limitation being imposed upon the ability of manufacturers to advertise or place branding upon the outer packaging or the tobacco product itself. The Regulations do not however involve all tobacco products being sold in a homogeneous, undifferentiated manner. The manufacturers can still place the brand name and variant name upon the box and in this way they can still communicate their identities to consumers and differentiate themselves from their competitors. But the manner in which the name and brand may be used is highly regulated in order, in effect, to strip away as much of the attractiveness of the branding or advertising as possible.”
The Claimants advanced a wide array of different legal arguments. In the Judgment I categorised these under 17 different heads though many had multiple sub-arguments. During the proceedings the Claimants relied upon 25 expert reports and the Defendant relied upon 5 expert reports. A significant number contained econometric and statistical regressions analyses addressing the future effect of the proposed new packaging rules upon demand for tobacco in the context of an argument about proportionality. A central plank of the Claimants case was that, according to their economic analysis, the effect of introducing restrictions on packaging design would be counterproductive and would, in fact, lead to an increase in consumption not a decrease. The Defendant adduced expert evidence expressing a contrary view and also attacking the claimant's evidence upon the basis that if failed to meet internationally recognised best practice for expert evidence.
Following the hearing an application was received by the Court made by Mr Robert Eckford, on behalf of the “Campaign for Tobacco Free Kids” (“CTFK”) of which he is Associate Director. In the application disclosure is sought of Court documents. I set out the details of the documents sought below. CTFK is a Non-Governmental Organisation (“NGO”) based in Washington DC that promotes tobacco control measures and legislation worldwide in particular in lower and middle-income countries.
In the application it is argued that the analysis and conclusions in the Judgment have significant wider implications for the adoption and implementation of standardised packing of tobacco products in states around the world where CTFK works with governments and other NGOs. This included states within the EU. The application states that disclosure of the documents would aid the understanding of the legal and factual issues surrounding the question of standardised packaging and would promote debate.
Prior to making this application Mr Eckford had, on behalf of CTFK, obtained copies of the Statements of Facts and Grounds served by the Claimants and the Detailed Grounds of Resistance served by the Defendant. These were provided under CPR 5.4C(1). These pleadings all refer to the evidence that Mr Eckford now seeks disclosure of.
The application seeks evidence tendered on behalf of the Claimant tobacco companies but also the Defendant Secretary of State. In particular the application seeks: (i) the expert reports of Professor Mulligan and Professor Bezant filed by the Claimant, Philip Morris; (ii) the expert reports of Professor Hammond and Professor Chaloupka filed by the Secretary of State; (iii) various letters sent by the World Health Organisation (“WHO”) and secretariat of the Framework Convention on Tobacco Control (“FCTC”) to the Under Secretary for Public Health together with the amicus brief of WHO and FCTC sent to the WHO dispute settlement procedure; (iv) the witness statements of Mr Mean and Mr Derbyshire filed by the Defendant; (v) the witness statement of the Chief Medical Officer in the United Kingdom; (vi) the witness statement of Mr Martin Bowles filed by the Defendant; and (vii) the full detailed submissions to Ministers of December 2014 (prepared by civil servants following a consultation on the proposed new measures).
It is important to record how these documents were used. The volume of documentary material was vast. But by no means all of it was referred to; much was included in the voluminous hearing bundles by way of background material. For instance, the parties included material that they had submitted in the course of prior submissions to Government and in the course of earlier consultative exercises. In contrast, the documents which are the subject of the present application were much more central to the issues being considered. To make the hearing manageable, given the compendious nature of the arguments advanced, it was agreed that the Court would undertake substantial pre-reading by way of preparation. In addition, during the hearing I was invited by counsel to read documents to myself overnight and during adjournments in order to facilitate and expedite oral submissions. This included not just the substance of witness statements and expert reports but also the numerous exhibits attached thereto. These exhibits were referred to not just in the witness statements but also in oral and written argument. In this connection I had the benefit of extensive (nearly 800 pages) of written submissions which also referred to the documents in issue. Once the oral hearing concluded I was left to read and reread all this material, which I did. Put shortly in a very real sense the documents now applied for comprised material of central relevance to the legal issues arising in the litigation.
B. The power of the Court to order disclosure
The rules governing the publication and disclosure of court documents are set out in the Civil Procedure Rules (“CPR”).
CPR 5.4C is concerned with the supply of document to non-parties from court records. Prima facie, the “ general rule” is that: “ a person who is not a party to proceedings may obtain from the court records a copy of (a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it; (b) a judgment or order given or made in public (whether made at a hearing or without a hearing), subject to paragraph (1B).”
CPR 5.4C(2) confers a discretion or power on the Court to order the production of other documents filed by a party:
“(2) A non-party may, if...
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