Tesco Ireland Ltd (plaintiff) v Dunnes Stores

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 23 December 2009
• Neutral Citation: [2009] IEHC 569
• Docket Number: [No. 11281P/2009]
• Court: High Court
• Date: 23 December 2009

[2009] IEHC 569

THE HIGH COURT

[No. 11281P/2009]

Tesco Ireland Ltd v Dunnes Stores

BETWEEN

TESCO IRELAND LIMITED

PLAINTIFF

AND

DUNNES STORES

DEFENDANT

RSC O.84B

CONSUMER PROTECTION ACT 2007 S71

EUROPEAN COMMUNITY (MISLEADING & COMPARATIVE MARKETING COMMUNICATIONS) REGS 2007 SI 774/2007 REG 5

DUNNE STORES v MANDATE 1996 1 IR 55

CONSUMER PROTECTION ACT 2007 S43

CONSUMER PROTECTION ACT 2007 S44

CONSUMER PROTECTION ACT 2007 S46

CONSUMER PROTECTION ACT 2007 S42

CONSUMER PROTECTION ACT 2007 S43(1)

CONSUMER PROTECTION ACT 2007 S43(3)(C)

CONSUMER PROTECTION ACT 2007 S43(4)

CONSUMER PROTECTION ACT 2007 S43(5)

CONSUMER PROTECTION ACT 2007 S44(1)

CONSUMER PROTECTION ACT 2007 S46(1)

CONSUMER PROTECTION ACT 2007 S46(2)

CONSUMER PROTECTION ACT 2007 S46(5)

CONSUMER PROTECTION ACT 2007 S67

CONSUMER PROTECTION ACT 2007 S71(2)

CONSUMER PROTECTION ACT 2007 S71(3)

CONSUMER PROTECTION ACT 2007 S71(5)

CONSUMER PROTECTION ACT 2007 S71(4)

CONSUMER PROTECTION ACT 2007 S71(7)

CONSUMER PROTECTION ACT 2007 S71(6)

DIR 2006/114 EEC

EUROPEAN COMMUNITY (MISLEADING & COMPARATIVE MARKETING COMMUNICATIONS) REGS 2007 SI 774/2007 REG 3

EUROPEAN COMMUNITY (MISLEADING & COMPARATIVE MARKETING COMMUNICATIONS) REGS 2007 SI 774/2007 REG 4 PAR2

EUROPEAN COMMUNITY (MISLEADING & COMPARATIVE MARKETING COMMUNICATIONS) REGS 2007 SI 774/2007 REG 5 PAR 1

DIR 2006/114 EEC (3)

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

RSC O.84B r 1 (2)(B)

INJUNCTIONS

Final or interlocutory

Consumer information - Advertising - Comparison of promotional prices with standard prices of competitor - Allegation of misleading commercial practices - Alleged breach of consumer protection law - Contention that competitor without clean hands - Affidavit evidence - Regulations - Whether procedural compliance - Whether final order should be made - Factual dispute - Necessity for oral evidence - Whether material non-disclosure on ex parte application - Dunnes Stores v Mandate [1995] 1 IR 55 considered - Consumer Protection Act 2007 (No 19), ss 43, 44, 46 and 71 - European Communities (Misleading and Comparative Marketing Communications) Regulations 2007 (SI 774/2007), regs 3, 4 and 5 - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - Submissions on reconstitution of proceedings directed (2009/11281P - Laffoy J - 23/12/2009) [2009] IEHC 569

Tesco Ireland Limited v Dunnes Stores

Facts: The plaintiff and the defendant were two major supermarket and retail operators in the state and the plaintiff sought to restrain by injunction comparative promotional advertising of the defendant. The plaintiff complained that the defendant's advertisements were misleading for consumers and in breach of the Consumer Protection Act 2007 and the European Community (Misleading and Comparative Marketing Communications) Regulations 2007 (S.I. No. 774 of 2007) which purported to implement the Misleading Advertising Directive, Directive 2006/114 EC, in Irish law. The European Communities (Misleading Advertising) Regulations 1988 (S.I. No. 134 of 1988) were revoked by the 2007 Regulations. The defendant argued that the information advertised was accurate and that the plaintiff did not come to court with clean hands having engaged in similar 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 regard to legislative changes since that decision, that the court had jurisdiction to grant interlocutory relief as well as to make a final order in the application.

Held by Laffoy J. that there was no difference in substance between the new and old Regulations and that following the earlier decision of the Supreme Court that the Court only had jurisdiction under s. 71 of the Act of 2007 and Regulation 5(1) to make a final order and that the Court lacked jurisdiction to grant an interim or interlocutory order. The State had opted for a procedure under the Regulations of 2007 with definite final effect. Given the level of conflict between the parties at issue, it would have been dangerous on the evidence before the Court on affidavit to determine whether there had been a breach of the Act of 2007 or the Regulations of 2007. The totality of the evidence suggested a degree of subtlety in retail pricing, marketing and advertising which was impossible to grasp on an application on affidavit evidence without the possibility of cross-examining the witnesses. The Court would not accede to the application of the plaintiff but would hear submissions on the reconstitution of the proceedings.

Reporter: E.F.

Judgment of

Miss Justice Laffoy

1 delivered on the 23rd day of December, 2009.

2 The plaintiff and the defendant are two of the major supermarket and retail operators in the State. In these proceedings the plaintiff seeks to restrain by injunction a certain type of advertising by the defendant. In essence, the plaintiff's complaint is that the defendant's advertisements, by comparing the defendant's promotional prices with the plaintiff's standard prices and, therefore, failing to compare like with like, are misleading for customers and in breach of the Consumer Protection Act 2007 (the Act of 2007) and the European Community (Misleading and Comparative Marketing Communications) Regulations 2007 ( S.I. No. 774 of 2007) (the 2007 Regulations). In broad terms, the defendant's response is that the information contained in its advertisements is accurate as of the date of publication and not capable of misleading consumers in the context of a daily changing advertising environment where pricing approaches are far more complex than the plaintiff claims. Furthermore, the defendant contends that the plaintiff has engaged in the form of advertising complained of and other forms of advertising which are inaccurate or inappropriate and, accordingly, does not come to Court with clean hands.

3 The specific advertisements placed by the defendant in the period of just over a week prior to the initiation of these proceedings which the plaintiff contends are in breach of the law in comparing the defendant's prices (Dunnes prices) with the plaintiff's prices (Tesco prices) are the following:

1. 3rd December 2009: the Irish Independent and Metro newspapers

4 The products in question are 24-packs of Guinness, Carlsberg and Budweiser 50cl cans. Beside the product image, the Dunnes price is indicated in a bright red circle as €26.99, while the Tesco price is indicated in a slightly smaller, grey circle as €39.99. The small print below on the opposite side of the 2-page advertisement indicates that "all offers are subject to availability and valid until 05.12.09". It also states: "TESCO PRICES CHECKED ON 01.12.09 and 02.12.09".

5 According to the plaintiff, the Tesco price indicated is its everyday or standard price. Because the small print indicates that the Dunnes price is promotional, the plaintiff complains that the advertisement does not compare like with like and could be considered to imply that both prices are promotional when this is not the case.

6 According to the defendant, the advertisement image and the small print both contain accurate information regarding the price of the product as of the date of the advertisement and that the Dunnes price is promotional. It contends that consumers would be aware that the prices reflect Christmas promotional prices.

2. 6th December 2009: Sunday Independent and Sunday World newspapers

7 The products in question are Wolf Blass Red Label Shiraz Cabernet and Carte Noire coffee.

8 Beside the Wolf Blass image, the Dunnes price is indicated in a bright red circle as €9.99, while the Tesco price is indicated in a slightly smaller, grey circle as €11.49.

9 Beside the Carte Noire image, the Dunnes price is indicated in a bright red circle as €4.00, while the Tesco price is indicated in a slightly smaller, grey circle as €6.95. The small print below the images on the opposite side of the 2-page advertisement indicates: "all offers subject to availability and valid until 12.12.09 unless otherwise stated". On the bottom of the near side of the 2-page advertisement, it is stated: "TESCO PRICES CHECKED ON 3rd December and 4th December 2009".

10 According to the plaintiff, in relation to Wolf Blass, on the basis of an instore display exhibited, the Dunnes price reflected a promotional price to 5th January 2010, whereas the Tesco price was the standard price. In relation to Carte Noire, the instore display referred to the Dunnes price in its promotional format (although it did not specify an end-date for the promotion), whereas the Tesco price was the standard price.

11 The defendant's position is that these prices are correct and that the small print clearly indicates that, unless otherwise stated, the prices would be valid until 12th December 2009. As the instore displays indicated, the defendant's prices were promotional and for limited periods.

3. 10th December 2009: the Irish Independent newspaper

12 The products in question are Blossom Hill Shiraz 75cl, Domestos bleach and Charmin Toilet Tissue. Beside the Blossom Hill image, the Dunnes price is indicated in a bright red circle as €6.99, while the Tesco price is indicated in a slightly smaller, grey circle as €7.99. Beside the Domestos image, the Dunnes price is indicated in a bright red circle as €2.00, while the Tesco price is indicated in a slightly smaller, grey circle as €3.05. Beside the Charmin image, the Dunnes price is indicated in a bright red circle as €4.00 while the Tesco price is indicated in a slightly smaller, grey circle as €5.79. The small print at the bottom of the advertisement states: ...