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Victory for open justice in judgment ordering disclosure of tobacco industry evidence

Campaigners win right for disclosure of documents following litigation with tobacco companies over plain packaging

Posted on 21 December 2018

A legal action brought by the tobacco industry challenging the lawfulness of the Regulations introducing plain packaging for cigarettes and rolled tobacco products in the UK was dismissed by the High Court in an emphatic 386-page judgment in May 2016.

Leigh Day represented the campaigning public health charity ASH who intervened in the legal action in support of the Government’s proposals to introduce plain packaging.

All arguments put forward by the tobacco industry that the Regulations breached international, European and domestic law, including that the measures would infringe the tobacco companies’ human rights and intellectual property rights, were rejected by Mr Justice Green in his comprehensive judgment, subsequently upheld by the Court of Appeal.

In his judgment, the Judge was particularly critical of the evidence submitted by the tobacco industry (the Claimants in the legal action) and stated:

“As a generality, the Claimants’ evidence is largely: not peer reviewed; frequently not tendered with a statement of truth or declaration that complies with the CPR [Civil Procedure Rules]; almost universally prepared without any reference to the internal documentation or data of the tobacco companies themselves; either ignores or airily dismisses the worldwide research and literature base which contradicts evidence tendered by the tobacco industry; and, is frequently unverifiable… Some of it was wholly untenable and resembled diatribe rather than expert opinion”

Following the tobacco industry’s unsuccessful legal challenge, the Regulations came into effect on 20th May 2016, with a one-year transitional period to allow for the sell-through of old stock.

From May 2017 all tobacco products on sale in the UK have needed comply with the plain packaging Regulations.

After the hearing, Robert Eckford, Associate Director of the Campaign for Tobacco Free Kids (CTFK), a Non-Governmental Organisation based in Washington DC that promotes tobacco control measures and legislation worldwide and particularly in lower and middle-income countries, applied to the Court for the disclosure of a number of the court documents including expert reports and witness statements filed by the tobacco industry.

ASH then made detailed submissions in support of CTFK’s application for the disclosure of these documents. In his judgment of 20th December 2018, the now Lord Justice Green granted the application for the disclosure of the documentation to CTFK and therefore into the public domain. In paragraphs 25 and 26 of his judgment, he summarised ASH’s submissions as follows:

“The Intervener, Action on Smoking and Health (ASH), supported the application for disclosure and made a number of substantive points about the potential future relevance of the material sought. I can summarise their submissions as follows. First, the decision by the UK to follow the lead of the Australian Government to introduce legislation was considered by the tobacco industry as significant in that there was a risk that many other countries might follow the lead of the UK Government and this encouraged the tobacco industry to invest in challenging the legislation in the UK. Second, my judgment, and its endorsement by the Court of Appeal subsequently, has provided comfort to Governments around the world considering adopting the same or similar legislation on plain packaging. Third, plain packaging legislation is now being introduced around the world in the Americas, Africa, Asia and the Western Pacific. As of the date of the ASH submissions plain packaging legislation existed in 8 jurisdictions and was under consideration in a further 24. Fourth, the tobacco industry was still mounting campaigns against plain packaging, including in the UK, notwithstanding the legal position in the UK. The industry had for instance cited statistics produced by academics at University College London (UCL) which purported to show that smoking had increased since the introduction of the plain packaging rules. ASH submitted however that even the academics who generated the data were saying that it had been misrepresented. Fifth, ASH contended that the reason that the industry was still advancing such arguments and evidence was to seek to deter third countries from introducing plain packaging legislation and there was a concern (by the anti-smoking lobby) that smaller and middle-income countries might be chary of taking on the tobacco industry in litigation. Sixth, given this context ASH submitted that the arguments that were rejected in the UK by the High Court and Court of Appeal were still being advanced elsewhere in the world. Seventh, in these circumstances ASH argued that in relation to the expert evidence sought by the applicant it was important that it should be available in the public domain so that it could (variously) be assessed against criticisms made of it in the Judgment or (conversely) against the reasons why it was accepted. Either way, it would assist other governments to understand the full context to this evidence and other evidence of a similar nature."

“In recording the submissions of ASH as to the significance of evidence now being tendered by the tobacco industry (which I have not seen) I am, of course, not expressing any view about that evidence. The relevance of the point lies in ASH’s contention that transparency about the material adduced before the High Court in the UK should be placed into the public domain so that all concerned can view it and form their own conclusions about the evidence and this would thereby provide context to new and analogous evidence being adduced by the tobacco sector.”

In giving judgment the Judge stressed the importance of the principle of open justice in stating in paragraph 28 that:

“The starting point of all true justice is that it should be done and be seen to be done in public. It is difficult to understate the importance of transparent justice. It is fundamental to democracy. It is a powerful discipline upon judges and the parties. All that is said and done in a court is and should prima facie be subject to public scrutiny. It ensures that the press can report and thereby educate those who cannot attend. It is a cornerstone of the confidence that the public repose in those whose daily task it is to take difficult and intractable decisions that the process which leads to the end decision is subject to view and comment. As such open justice serves to protect the judiciary from ill-informed or mischievous speculation about the reasons behind a decision.”

He then summarised, in paragraph 44, his reasons for granting the application for disclosure in paragraph 44 as:

“In short: (i) the documents were all referred to in pleadings, evidence and submissions before the Court and they were all read and taken into consideration by me in preparing the Judgment; (ii) the documents raise issues relating to public safety and health; (iii) the issue of standardised packing is an issue of broad continuing importance to the international community; (iv) the evidence, or material similar to it, is still being advanced by the tobacco industry in the UK and in other jurisdictions, according to ASH; (v) conclusions arrived at in the Judgment about this evidence are better understood with the actual evidence itself being available in the public domain; (vi) wider transparency might thereby assist other interested persons, countries and courts to form their own views about the merits or otherwise of the competing arguments; (vii), there were no grounds cited at the time of the litigation to justify preserving the secrecy of the documents in issue and none arise now: (viii) it is not relevant that the litigation is at an end.”

Commenting on the judgment, ASH Chief Executive Deborah Arnott said: “This important judgment represents a further defeat for the tobacco industry and will make it much harder for them to peddle their wholly discredited arguments against the plain packaging of cigarettes in other parts of the world.”

Sean Humber Head of the Human Rights Department at Leigh Day said: “This judgment is a resounding victory for open justice and a recognition that, in order to maintain public confidence, the court process, including the evidence put forward by the parties, needs be open to proper scrutiny. In this case, the disclosure will assist those wishing to understand why so much of the tobacco industry’s evidence was so comprehensively rejected by the court”.