Dunnes Stores Ltd v Mandate

JurisdictionIreland
CourtSupreme Court
JudgeBlayney J.
Docket Number(400/95),[S.C. No. 400 of 1995]
Date19 January 1996

1996 WJSC-SC 985

THE SUPREME COURT

Hamilton C.J.

Blayney J.

Denham J.

(400/95)
DUNNES STORES LTD v. MANDATE
BETWEEN/
DUNNES STORES LIMITED
Plaintiff/Appellant

and

MANDATE
Defendant/Respondent

Citations:

EUROPEAN COMMUNITIES (MISLEADING ADVERTISING) REGS 1988 SI 134/1988 ART 4(1)

EEC DIR 84/450 ART 2(1)

EUROPEAN COMMUNITIES (MISLEADING ADVERTISING) REGS 1988 SI 134/1988 ART 4(4)

EUROPEAN COMMUNITIES (MISLEADING ADVERTISING) REGS 1988 SI 134/1988 ART 4(5)

EUROPEAN COMMUNITIES (MISLEADING ADVERTISING) REGS 1988 SI 134/1988 ART 4(6)

EUROPEAN COMMUNITIES (MISLEADING ADVERTISING) REGS 1988 SI 134/1988 ART 2(1)

EUROPEAN COMMUNITIES (MISLEADING ADVERTISING) REGS 1988 SI 134/1988 ART 2(2)

EUROPEAN COMMUNITIES (MISLEADING ADVERTISING) REGS 1988 SI 134/1988 ART 2(3)

EUROPEAN COMMUNITIES (MISLEADING ADVERTISING) REGS 1988 SI 134/1988 ART 4(2)

EUROPEAN COMMUNITIES (MISLEADING ADVERTISING) REGS 1988 SI 134/1988 ART 4(3)

EEC DIR 84/450 ART 1

Synopsis:

ADVERTISEMENT

Publication

Restraint - Application - Procedure - Injunction - Mistake - Breach of statutory regulations alleged - Application to be treated as seeking relief under regulations - (400/95 - Supreme Court - 19/1/95) - [1996] 1 I.R. 55 - [1996] 1 ILRM 384

|Dunnes Stores Ltd. v. Mandate|

INJUNCTION

Procedure

Propriety - Advertisement - Publication - Restraint - Application - Grounds - Misleading advertising contrary to statutory regulations - Equitable relief by injunction inappropriate - Application treated as seeking relief under regulations - European Communities (Misleading Advertising) Regulations, 1988 (S.I. 134), articles 2.,4 - Council Directive 84/450/EEC, article 2 - (400/95 - Supreme Court - 19/1/95)1996 1 IR 55 1996 1 ILRM 384

|Dunnes Stores Ltd. v. Mandate|

TRADE UNION

Trade dispute

Union - Complaints - Advertisement - Publication - Restraint - Employer's application for injunction by way of equitable relief - Breach of statutory regulations alleged - Application to be treated as seeking relief under regulations - (400/95 - Supreme Court - 19/1/95) - [1996] 1 I.R. 55 - [1996] 1 ILRM 384

|Dunnes Stores Ltd. v. Mandate|

1

Judgment of the Court delivered on the 19th day of January 1996 Blayney J. by [NEM DISS]

2

This is an appeal brought by the plaintiff/appellant (hereinafter called the appellant) against the decision of Murphy J. refusing to grant to the appellant an interlocutory injunction restraining the publication of an advertisement intended to be published by the defendant/respondent (hereinafter referred to as the respondent). At the conclusion of the hearing of the appeal the Court dismissed the appeal and indicated that it would give its reasons later. The purpose of this judgment, which is the judgment of the Court, is to set out the Court's reasons for coming to this conclusion.

3

The appellant is part of the well known Dunnes Stores group of companies which operate numerous retail outlets throughout the country. The respondent is a registered trade union and it represents a majority of the persons employed by Dunnes Stores at its various outlets. On the 24th November 1995 it came to the knowledge of the appellant that the respondent had made arrangements to have an advertisement in the following terms carried in the national press on the following day:

" A question for Dunnes Stores"

4

Do they know it is Christmas time at all?

5

You may remember that Dunnes Stores workers took industrial action in June and July of this year. There was overwhelming support for the workers position among the general public and, following the intervention of the Labour Court the terms of a settlement were agreed between Dunnes Stores Management and Mandate, the union representing the majority of Dunnes workers. We all hoped that a positive new era would be ushered in, and that Dunnes Stores could go on to renew its central place in Irish life with the commitment and support of an excellent workforce. However, since the strike, things have got worse rather than better.

6

Dunnes Stores have failed to act upon what was agreed in good faith. They have: failed to act on the Labour Court recommendation to immediately award workers a three per cent pay rise under the PESP: six months later Dunnes Stores have only created fifty two of the two hundred full time jobs which they agreed to.

7

Dunnes Stores decision to cut pay rates for Sunday working during Christmas is the last straw for workers who genuinely wanted — and still want — to find a positive, constructive way forward. Most of Dunnes competitors are still paying the traditional triple time for Sunday working at Christmas. For many of the Dunnes Stores workers, their Christmas pay is absolutely vital. The majority of Dunnes Stores workers, who are part-time, still earn a lot less than the average industrial wage. With Christmas pay, they could afford Christmas presents for their families. Now even this has become more difficult for them.

8

The decision by Dunnes Stores workers to take limited strike action is made with extreme regret as, we know and appreciate the tremendous support we received from you, the public, earlier in the year but we have been left with no choice.

9

In this season of goodwill, all we can do is thank you for your help earlier this year — and appeal again for your support."

10

The appellant immediately sought and was granted an interim injunction restraining the publication of the advertisement until the 27th November, and the application for an interlocutory injunction was heard and refused by Murphy J. on the 29th November.

11

The appellant's claim, as set out in the general endorsement of claim in the plenary summons, is for a declaration that the proposed advertisement is false and misleading within the meaning of the European Communities (Misleading Advertising) Regulations 1988 ( S.I. No. 134 of 1988) (hereinafter referred to as the 1988 Regulations) and they claim also an injunction pursuant to the 1988 Regulations restraining the respondent from publishing the advertisement.

12

The application before Murphy J. was an application for an interlocutory injunction and was dealt with by him as such. He held that the appellant had established that there was a fair question to be decided both on the facts and the law so that the issue resolved itself into one based on the balance of convenience. He dealt with that issue as follows:-

" At the present state of the proceedings, it seems to me that the balance of convenience and the proper exercise of the discretion of the Court lie in favour of withholding interlocutory relief. There is difficulty in applying the established criteria to the present claim. The contravention of the Regulation would not entitle the aggrieved party to damages. They are entitled to restrain an advertiser in certain circumstances from publishing inaccurate or misleading statements or to have such statements, if published, corrected. On the other hand, if the intended publication were to be prohibited at this stage, such merits as the advertising campaign based on an emotive appeal to financial stringency at Christmas time would be wholly and for all practical purposes permanently defeated."

" If no injunction is granted the defendant would be free (so far as the present proceedings are concerned) to publish the proposed advertisement and of course the plaintiff would have equal liberty, and presumably have more than adequate resources, to provide the public with their version or account of the matters dealt with in the defendant's advertisement where such other topics as the plaintiffs feel should be brought to the attention of the public. It seems to me that this procedure, though unsatisfactory and disappointing in certain respects, is a more attractive temporary solution than the granting of an injunction at an interlocutory stage the effect of which would be virtually definitive in the circumstances of the case."

13

The principal case made on behalf of the appellant on the hearing of this appeal was that the learned trial judge had been incorrect in holding against the appellant on the ground of the balance of convenience. It was submitted that the learned trial judge, having found that there was a fair issue to be tried both on the facts and the law, and that damages would not be an adequate remedy, ought to have granted the injunction. Otherwise the appellant would be left without any remedy. It was further submitted that the advertisement was of the type prohibited by the 1988 Regulations and so ought to have been restrained by the grant of an interlocutory injunction.

14

That the advertisement was of the type prohibited by the Regulations was strongly contested by Mr. Collins on behalf of the respondent. He referred to the definition of "advertising" in Article 2(1) of the Council Directive on which the 1988 Regulations were based, i.e. Council Directive of the 10th September 1984 (84/450/EEC) and submitted that the proposed advertisement quite clearly did not come within that definition. He submitted also that what the appellant was in effect seeking was a final order and not an interlocutory injunction and that its application should be dealt with on that basis.

15

In the view of the Court the first issue that has to be decided is whether the learned trial judge was correct in treating the matter before him as an application for an interlocutory injunction or whether he ought to have treated it as an application for a final order under Article 4(1) of the 1988 Regulations. The resolution of this issue depends on the provisions of the 1988...

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6 cases
  • Mahon v Butler
    • Ireland
    • Supreme Court
    • 1 de janeiro de 1998
    ...an order under that section, the court could not exceed the jurisdiction conferred by that section. Dunnes Stores Ltd. v. MandateIR [1996] 1 I.R. 55 applied. Dublin County Council v. KirbyDLRM [1985] ILRM 325 approved. 3. That neither the judicial review proceedings nor any other proceeding......
  • Tesco Ireland Ltd (plaintiff) v Dunnes Stores
    • Ireland
    • High Court
    • 23 de dezembro de 2009
    ...behaviour itself. The plaintiff had drawn the attention of the court to the decision of the Supreme Court in Dunnes Stores v. Mandate [1996] 1 IR 55, which precluded interlocutory relief in such cases, having regard to the earlier Regulations. However, the plaintiff submitted that having re......
  • Aldi Stores Ireland Ltd v Dunnes Stores
    • Ireland
    • Supreme Court
    • 28 de maio de 2019
    ...an application for interim or interlocutory relief: see the judgment of the Supreme Court in Dunnes Stores Ltd. v. Mandate [1996] 1 I.R. 55, pp. 63 and 64, and the judgment of the High Court in Tesco Ireland Ltd. v. Dunnes Stores [2009] IEHC 569, (Unreported, High Court, Laffoy J., 23 Dec......
  • St. Margaret's Concerned Residents Group v Dublin Airport Authority Plc
    • Ireland
    • High Court
    • 21 de novembro de 2017
    ...commission of those wrongful acts.' (See the decision of Gannon J in Dublin County Council v. Kirby [1985] ILRM 325, and Dunnes Stores Ltd v. MANDATE [1996] 1 ILRM 384).' 60 Having regard to the just-quoted reasoning, counsel for Dublin Airport Authority makes the following submission: '[......
  • Request a trial to view additional results

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