Lidl Ireland GmbH v Irish Farmers Association, Tim Cullinan and Brian Rushe
| Jurisdiction | Ireland |
| Judge | Mr. Justice Allen |
| Judgment Date | 04 June 2021 |
| Neutral Citation | [2021] IEHC 381 |
| Date | 04 June 2021 |
| Docket Number | [2021 No. 1787P.] |
| Court | High Court |
[2021] IEHC 381
[2021 No. 1787P.]
THE HIGH COURT
Interlocutory injunction – Defamation – Defence – Plaintiff seeking an interlocutory injunction prohibiting the publication or further publication of two identified advertisements published by the defendants – Whether the advertisements were clearly and unquestionably defamatory
Facts: The plaintiff, Lidl Ireland GmbH, applied to the High Court for an interlocutory injunction pursuant to s. 33 of the Defamation Act 2009 prohibiting the publication or further publication of two identified advertisements published by the defendants, Irish Farmers Association, Mr Cullinan and Mr Rushe, in March, 2021, or any statement to like effect. The plaintiff’s case was that the advertisements were clearly and unquestionably defamatory and that the court should enjoin any re-publication. The defendants stood over the advertisements. They denied that the advertisements were defamatory and claimed that they had a good defence to the action.
Held by Allen J that the onus was on the plaintiff to establish that the statements complained of were defamatory and that the defendants had no defence that was reasonably likely to succeed. Allen J was not satisfied that the “Exposed” advertisement clearly and only meant that the plaintiff’s own branded milk was not Irish. Allen J was not satisfied that the “Exposed” advertisement clearly and only meant that the plaintiff’s labelling and packaging was misleading as to the country of origin of its products. Allen J was not on this application to say whether the several cumulative and alternative defences which the defendants claimed to have would, or were likely to, succeed or to attempt to assess the defendants’ likelihood of success but merely to decide whether it had been shown by the plaintiff that the defendants had no defence which was reasonably likely to succeed. Allen J was not so satisfied.
Allen J concluded that the plaintiff had not met the statutory threshold for the making of an order under s. 33 of the 2009 Act and for that reason the application must be refused. Provisionally, it seemed to Allen J that the defendants had been entirely successful on the motion and that the plaintiff must pay the costs. Also provisionally, Allen J was inclined to stay execution on foot of the order for costs pending the determination of the action.
Application refused.
JUDGMENT of Mr. Justice Allen delivered on the 4th day of June, 2021
This is an application for an interlocutory injunction pursuant to s. 33 of the Defamation Act, 2009 prohibiting the publication or further publication of two identified advertisements published by the defendants in March, 2021, or any statement to like effect.
The plaintiff's case is that the advertisements were clearly and unquestionably defamatory and that the court should enjoin any re-publication. The defendants stand over the advertisements. They deny that the advertisements were defamatory and claim that they have a good defence to the action.
The plaintiff is a German registered limited liability company which, having established a branch in Ireland – that is to say in the State rather than the island of Ireland – is registered with the Companies Registration Office as an External Company. It operates a well-known chain of supermarkets throughout the country. Part of its business model – or in the modern language its Mission – is “… to strive for greater sustainability across our business … through the sourcing of our products”, to which end it claims that “70% of our products are sourced from within Ireland, and we're proud to support Irish farmers and suppliers. Our customers can choose between popular brands as well as award-winning Lidl own brands.”
The first defendant is an unincorporated association whose objects are inter alia to promote, foster and develop agriculture; to secure an adequate living for the maximum number of families living on the land in Ireland; and to represent, advance and protect the particular interests of its members. The second and third defendants are, respectively, the president and deputy president of the first defendant.
On 14th March, 2021 the first defendant published in the Sunday Independent and Irish Farmers Journal newspapers, and then and since on its website, the following advertisement:-
On 18th March, 2021 the first defendant published in the Irish Farmers Journal newspaper, and then and since on its website, the following advertisement:-
As is apparent, the second advertisement includes a photograph and the signature of the second defendant. The plaintiff's case is that the content of the advertisements or words to like effect were repeated and republished in radio and print interviews and articles published on various websites.
The reference in the second advertisement to a legal threat was to a letter of 15th March, 2021 from the plaintiff's legal department to the IFA complaining that the first advertisement was false and defamatory, calling for a retraction and apology, demanding a proposal of damages, and threatening proceedings in default.
The substance of the plaintiff's complaint is succinctly put in the notice of motion by which it seeks an order restraining the further publication of the two advertisements and/or any statements to the effect that (a) the plaintiff's own branded milk is not Irish; (b) the plaintiff is engaged in unlawful or misleading practices; (c) the plaintiff has misled its customers as to the origin of its products.
The plaintiff's case is that the advertisements are calculated to undermine it in the eyes of ordinary members of society by falsely implying that the plaintiff sources its milk from outside Ireland, when it sources its milk from Ireland, and that the plaintiff is deliberately attempting to mislead its customers.
While the meaning of the advertisements is said to be a matter for formal pleading, the case made on this application is that the “ Exposed” advertisement in the natural and ordinary meaning of the words and by innuendo meant and means that the plaintiff:-
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(a) Was guilty of a criminal offence, by supplying misleading information as to the country of origin or place or provenance of its milk;
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(b) Misled, tricked, or defrauded the public, as to the origin or provenance of its milk;
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(c) Misled the public to believe that its own-branded “ Coolree Creamery” milk was sourced in Ireland when, in fact, it was sourced from abroad;
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(d) Used its branding to drive down the price of milk paid to Irish dairy farmers.
With the same caveat, the case made as to the “ Did You Know?” advertisement is that the words used, in the natural and ordinary meaning of the words and by innuendo, meant and means that the plaintiff:-
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(a) Was guilty of a criminal offence, by supplying misleading information as to the country of origin or place of provenance of its products;
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(b) Misled, tricked, or defrauded the public, as to the origin or provenance of its products;
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(c) Misled the public to believe that “ Coolree Creamery” was the source of its milk;
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(d) Misled the public to believe that “ Connell Bakery” was the source of its bread;
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(e) Misled the public to believe that “ Connell Farm” was the source of its eggs;
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(f) Created phantom farms, with the intention of misleading customers as to the origin or place of provenance of their products;
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(g) Used its branding to drive down the price paid to Irish farmers;
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(h) Wrongfully threatened or intimidated the IFA.
To understand the case made on either side on this application it is useful to pause here to note that while the second advertisement was directed to the plaintiff's “ Connell Farm” eggs and “ Connell Bakery” bread, as well as its “ Coolree Creamery” milk – to which the first advertisement was solely directed – and while the alleged meanings complained of went well beyond the country of origin of the plaintiff's products, the evidence and argument offered on behalf of the plaintiff was very much focussed on the country of origin aspect, specifically on the country of origin of the plaintiff's milk. By contrast, as will be seen, the defendants' evidence and argument embraced the plaintiff's branding policies generally, not only as to the products shown in the photographs but as to other products on offer in the plaintiff's stores.
The affidavit of Ms. Ashling Holden, solicitor, on which the motion is grounded, avers to her belief that the statements are defamatory and that the defendants have no defence to the action that is reasonably likely to succeed.
In support of her belief that the defendants have no defence to the action that is reasonably likely to succeed Ms. Holden offers four reasons.
She says first, that as to the provenance of the plaintiff's milk, there is no need, at least insofar as Lidl is concerned, for consumers “to be sure that [their] milk is from the Republic of Ireland.” Ms. Holden deposed that the plaintiff's 1-litre milk is sourced from a farmer owned co-op in Donegal called Arrabawn, and that the plaintiff's 2-litre and 3-litre milk, although packaged in Northern Ireland, is sourced from farms in Ireland.
Secondly, she says, looking for the NDC logo would not necessarily tell a customer the origin of the milk. The rules of the National Dairy Council require that its logo may be applied only to milk which is packaged as well as produced in Ireland. The plaintiff's 1-litre milk, said Ms. Holden, is produced and packaged in Ireland and carries the NDC logo. The 2-litre and 3-litre packs, because they are packaged in Northern Ireland, do not.
Thirdly, says Ms. Holden, “Coolree Creamery” is the well-known brand-name for milk sold by the...
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