British American Tobacco UK Ltd & Ors v The Secretary of State for Health, Court of Appeal - Civil Division, November 30, 2016, [2016] EWCA Civ 1182

Resolution Date:November 30, 2016
Issuing Organization:Civil Division
Actores:British American Tobacco UK Ltd & Ors v The Secretary of State for Health
 
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Case No: C1/2016/2607,2624,2612 and 2614

Neutral Citation Number: [2016] EWCA Civ 1182

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Mr Justice Green

[2016] EWHC 1169 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 30 November 2016

Before :

LORD JUSTICE LEWISON

LORD JUSTICE BEATSON

and

SIR STEPHEN RICHARDS

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Between :

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Nigel Pleming QC, Geoffrey Hobbs QC, Philip Roberts, David Scannell and Dan Sarooshi (instructed by Herbert Smith Freshills LLP) for the Appellants in Case No. C1/2016/2607 (``BAT'')

David Anderson QC, Emma Himsworth QC and Jennifer MacLeod (instructed by Freshfields Bruckhaus Deringer LLP) for the Appellants in Case No. C1/2016/2624 (``JTI'')

David Anderson QC and Lindsey Lane and Jennifer MacLeod (instructed by Ashurst LLP) for the Appellant in Case No. C1/12016/2612 (``Imperial'')

Kelyn Bacon QC and Tim Johnston (instructed by Singletons Solicitors) for the Appellants in Case No. C1/2016/2614 (``the Tipping Appellants'')

James Eadie QC, Martin Howe QC, Ian Rogers QC, Catherine Callaghan, Julianne Kerr Morrison, Nikolaus Grubeck and Jaani Riordan (instructed by the Government Legal Department) for the Respondent (``the Secretary of State'')

Hearing dates : 18-21 October 2016

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JudgmentLord Justice Lewison:

INTRODUCTION

1. This is the judgment of the court, to which each of its members has contributed, on four linked appeals from an order of Green J dismissing claims for judicial review of The Standardised Packaging of Tobacco Products Regulations 2015 (``the Regulations''). The Regulations were made by the Secretary of State pursuant to section 94 of the Children and Families Act 2014 (`the 2014 Act') and section 2(2) of the European Communities Act 1972, following a lengthy consultation process and with Parliamentary approval by way of affirmative resolutions. They make provision for the retail packaging of cigarettes and hand rolling tobacco to be standardised, substantially limiting the ability of tobacco companies to place branding on the outer packaging or the tobacco products themselves. In part, they implement Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products (the Tobacco Products Directive or ``TPD'', but generally referred to in the appeals as ``TPD2'' because it replaces a 2001 directive on the subject). But they go further than TPD2 in the restrictions they impose, and it is those additional restrictions that are the subject of the present appeals.

2. The Regulations were challenged by the claimants on numerous grounds. There was a very large volume of evidence in the court below, including 27 witness statements and 30 expert reports; there were 16 bundles of authorities; the skeleton arguments and written submissions ran to many hundreds of pages; the hearing before the judge lasted 7 days; and the exercise undertaken by the judge after the hearing included, as his judgment makes clear, an in-depth review of all the expert evidence in the case. His judgment, extending to 1,000 paragraphs, is on any view a tour de force but we consider it to be much longer than was necessary or desirable. For those with the stamina it is available on BAILII (under neutral citation number [2016] EWHC 1169 (Admin)) and in the law reports (see [2016] ETMR 38) and also in Reports of Patent Cases: [2016] RPC 22. In those circumstances we refer to it so far as possible by way of summary and cross-reference rather than by quotation or repetition.

3. The judge grouped the issues before him under 17 grounds, all of which he dismissed, as follows:

i) Ground 1 (see Green J at [9] and [251]-[275]) was a challenge to the lawfulness of the Regulations on the basis that TPD2 was itself illegal. The issue was resolved against the claimants by the judgment of the CJEU of the European Union (``the CJEU'') in (Case C-547/14), Philip Morris Brands SARL and Others v Secretary of State for Health [2016] 3 WLR 973 (``Philip Morris'') and is not pursued on the appeals.

ii) The specific issue in ground 2 (see Green J at [10] and [276]-[404]) was whether the Secretary of State had erred in according only limited weight to the expert evidence served by the tobacco companies during the consultation process. As the judge said at [277], however, ``the point also resonates in the context of the other freestanding grounds which involve a consideration of the Claimants' evidence such as proportionality and in the context of alleged violations of property rights''. In finding against the claimants, the judge concluded at [404] that ``measured against internationally accepted research and evidence standards, that evidence, as a generality, was materially below par''.

iii) Grounds 3-5 (see Green J at [11] and [405]-[649], [650]-[679] and [680]-[711]) were separate elements of an overall proportionality challenge to the Regulations, contending that the Regulations would fail to meet their stated objective of improving public health and as such they were not ``suitable and appropriate'' (ground 3); they were not ``necessary'', because less extreme measures of equal efficacy could have been adopted (ground 4); and they failed to strike a fair balance between the public interest and the tobacco companies' private rights of property. Proportionality was raised as a free-standing ground of challenge but also played an important part in the grounds alleging breach of Article 1 of Protocol 1 to the European Convention on Human Rights (``A1P1'') and article 17 of the Charter of Fundamental Rights of the European Union (``the Charter''), described below. The judge found that the Regulations were proportionate both on the evidence at the time when they were considered by Parliament and on the further evidence before the court.

iv) Grounds 6-8 (see Green J at [12] and [712]-[812], [813]-[843] and [844]-[857]) were that by depriving the tobacco companies of their property, notably trade marks, without compensation or by imposing a disproportionate control on the use of such property without compensation, the Regulations were in breach of A1P1 (ground 6), article 17 of the Charter (ground 7) and the common law (ground 8).

v) Ground 9 (see Green J at [14] and [858]-[864]) concerned an alleged breach of article 16 of the Charter. It is not pursued.

vi) Grounds 10-12 were described by the judge at [15] as a series of technical challenges with the object of establishing that the Regulations were ultra vires by reference to TPD2 or broader principles of EU or international law. Ground 10 (see Green J at [865]-[883]) was that the Regulations violated the unitary character of Community trade marks (``CTMs'') contrary to Council Regulation (EC) No. 207/2009 of 26 February 2009 on the Community trade mark (``the CTMR''): the CTMR has since been amended by Regulation (EU) No. 2015/2424 of the European Parliament and of the Council of 16 December 2015, and is referred to in its amended form as ``the EUTMR''.

vii) Ground 11 (see Green J at [884-904]) was that the Regulations were in breach of article 24(2) of TPD2 by failing to take into account, as required by that provision, ``the high level of protection of human health achieved through this Directive''.

viii) Ground 12 (see Green J at [905]-[918]) was that, in so far as they went beyond implementation of TPD2, the Regulations were outside the competence of the United Kingdom because measures relating to the commercial aspects of trade marks fall within the common commercial policy of the EU and are thereby reserved to the exclusive competence of the EU. This ground included consideration of the Agreement on Trade-Related Aspects of Intellectual Property Rights (Annex 1C of the Marrakesh Agreement establishing the World Trade Organisation of 15 April 1994) (``the TRIPs Agreement'') and the compatibility of the Regulations with the TRIPs Agreement.

ix) Ground 13 (see Green J at [15] and [919]-[932]) concerned the lawfulness of the consultation process that preceded the making of the Regulations. It is not pursued.

x) Ground 14 (see Green J at [14] and [933]-[934]) was an alleged infringement of article 34 of the Treaty on the Functioning of the European Union (``the TFEU''). It is not pursued.

xi) Ground 15 (see Green J at [15] and [935]-[948]) was a complaint that Parliament acted unlawfully in not awaiting the outcome of the reference to the CJEU in the Philip Morris case. It is not pursued.

xii) Grounds 16 and 17 (see Green J at [16], [949]-[979] and [980]-[1000]) were advanced by producers of ``tipping paper'' (paper for the filter tips of cigarette sticks) and related specifically to the restrictions in regulation 5 on the colour of, and branding on, cigarettes. The contention was that regulation 5 was ultra vires, in particular that it was not permitted by article 24(2) of TPD2 (ground 16), alternatively that it was disproportionate (ground 17).

4. The judge granted the tobacco companies in three of the claims permission to appeal on grounds 2-8 inclusive and grounds 10-12 inclusive: those claimants were British American Tobacco UK Limited and associated companies (``BAT''), JT International SA and Gallaher Limited (``JTI''), and Imperial Tobacco Limited (``Imperial''). We will refer to BAT, JTI and Imperial collectively as ``the Tobacco Appellants''. The judge granted the claimant producers of tipping paper permission to appeal on grounds 16-17: these claimants were Tann UK Limited, Tannpapier GmbH, Benkert UK Limited and Deutsche Benkert GmbH & Co KG. We will refer to them as ``the Tipping Appellants''. The claimants in a further claim before him, namely Philip...

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