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Health Service Executive v. St. Johnston Taverns Ltd. & Ors. [Ireland] [February 15, 2013]

The Health Service Executive is appealing a lower court ruling in favor of the owners and operators of an inn charged with violation of the indoor smoking ban.  The area in question was a wooden structure that had been erected in the courtyard area and designated as the smoking area.  At issue were whether the area is “outdoor” and whether less than 50% of the perimeter is surrounded by walls.  The structure was attached to the building on two sides and covered by a clear, acrylic roof which overlaps with the guttering attached to the building.  There were small gaps (~300 mm) between the other two sides of the structure and the courtyard building wall.  The lower court held that more than 50% of the perimeter of the smoking area was not surrounded walls or similar structures, and that the distance between the edge of the smoking structure and the building wall was immaterial.  The High Court overturned the lower court’s decision, holding that the area was not “outdoor” but instead was entirely enclosed and essentially “a room within a room.”  Therefore, the area was not exempt from the smoking ban.

Health Service Executive v. P.J. Carroll & Co. Ltd. [Ireland] [March 03, 2012]

The Health Service Executive prosecuted P.J. Carroll & Company, a tobacco manufacturer/distributer, for providing financial assistance to retailers in consideration for promoting a tobacco product.  The company ran a program through which it encouraged sales assistants at retail stores to promote a particular brand of cigarettes when a customer requested to purchase certain other brands.  The company employed mystery shoppers to test sales assistants and reward them with a €30 voucher if they utilized the appropriate promotional phrase.  In reviewing the lower court’s dismissal of the prosecution, the High Court focused on whether the prize vouchers given to sales assistants were a form of “financial assistance” under the law.  The term “financial assistance” was not defined.  The High Court affirmed the dismissal on the grounds that financial assistance did not include a “once-off prize or reward of a small sum.”  Instead, financial assistance must assist a particular event or activity and is distinct from a “financial contribution.”  Because the action was brought specifically as a violation of the provision banning financial assistance (Public Health (Tobacco) Act (as amended), Section 36(2)) and not under the provision prohibiting sponsorship (Section 36(1)), the charges were dismissed.

Health Service Executive v. Brookshore Ltd. [Ireland] [May 19, 2010]

The Health Service Executive brought an enforcement action against the operators of a pub for violation of the indoor smoking ban.  The "outdoor" area of the pub in question was in between two parts of the building, surrounded on all sides and covered by a retractable canvas awning.  The lower court held that the awning was not a roof and the area was outdoors; therefore, the area was exempt from the smoking ban.  The High Court overturned the lower court’s decision, holding that the awning is a roof.  The material which makes up the roof is irrelevant in this determination.  Therefore, the smoking ban applies because this area of the pub is not “wholly uncovered by any roof, whether fixed or moveable,” as is required for an exemption under the law.

Syon v. Hewitt, et al. [Ireland] [November 10, 2006]

The defendants were prosecuted for trying to sell tobacco products to a minor who had volunteered in a test purchase organized by the Health Board. The judge in the district court  asked the High Court to advise as to whether entrapment would constitute a sufficient defense for defendants and, if so, whether the facts of the case raised this defense. The High Court concluded that the Health Board had the authority to organize such tests and that the tobacco control legislation had the objective of protecting children.

Malone Engineering Products Ltd. v. Health Service Executive [Ireland] [July 21, 2006]

The plaintiff, the designer and manufacturer of “Freshwall” modular smoking rooms or structures, sought a declaration that its product was exempt from the indoor smoking ban because it qualified as an outdoor premises where no more than 50% of the perimeter is surrounded by one or more walls.  The Freshwall structure is a specially designed four-sided, fully-roofed room composed of a series of panels which are 50% open. The court concluded that a Freshwall structure is not “outdoor” and the panels qualify as “walls” creating a continuous structure.  Therefore, the structures were not exempt from the indoor smoking ban.

P.J. Carroll & Co. Ltd. v. Minister For Health and Children [Ireland] [May 03, 2005]

Tobacco companies and a tobacco industrial association challenged advertising restrictions in Ireland's tobacco control statutes, claiming violations of constitutional law, European Law and the European Convention on Human Rights. The High Court, sitting as the "Commercial Court," refused to allow the defendants/appellants to present evidence regarding the impacts of tobacco products on minors. The Supreme Court allowed the appeal and set aside the judgment of the Commercial Court. In its analysis, the Supreme Court found that the case was not commercial in its essence, but constitutional. It therefore focused on the constitutional requirement that the advertising restrictions be proportional to their objectives and concluded that the defendants/appellants should have been permitted to provide oral evidence demonstrating the proportionality of the advertising restrictions.

P.J. Carroll & Co. Ltd. v. Minister for Health and Children [Ireland] [July 29, 2004]

Tobacco companies and a tobacco industrial association challenged advertising restrictions under the Ireland's tobacco control law, which they claimed violated  the Constitution, European law, and the European Convention on Human Rights. The government argued that presentation of evidence on the health effects of tobacco was necessary to understand the purpose of the regulations. The Court allowed the government to bring evidence regarding the health impacts of tobacco products on minors.

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