Vodafone Ireland Ltd v Telefonica Ireland Ltd Consumer Protection
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barton |
| Judgment Date | 20 May 2014 |
| Neutral Citation | [2014] IEHC 283 |
| Court | High Court |
| Date | 20 May 2014 |
[2014] IEHC 283
THE HIGH COURT
BETWEEN
AND
RSC O.84(B)
CONSUMER PROTECTION ACT 2007 S71
EUROPEAN COMMUNITIES (MISLEADING & COMPARATIVE MARKET COMMUNICATIONS) REGS 2007 SI 774/2007 REG 5
TESCO IRELAND LTD v DUNNES STORES UNREP LAFFOY 23.12.2009 2009/55/13850 2009 IEHC 569
DUNNES STORES LTD v MANDATE 1996 1 IR 55 1996 1 ILRM 384 1996/4/985
EUROPEAN COMMUNITIES (MISLEADING & COMPARATIVE MARKET COMMUNICATIONS) REGS 2007 SI 774/2007 REG 5(1)
RSC O.124 r1
RSC O.84(B) r8(1)(F)
INTERFLORA INC v MARKS & SPENCER PLC 2013 EWHC 1291 (CH) 2013 ETMR 35 2013 FSR 33
EEC DIR 104/1989 ART 5(1)(A)
EEC REG 40/1994 ART 9(1)(A)
RSC O.84(B) r7
Advertising –Misleading – Telecommunication Providers – Mobile Phone Top-Ups – Practice and Procedure – Affidavit Evidence – Plenary Hearing – Rules of the Superior Courts O. 84B.
Facts: The applicant and respondent are both telecommunication providers. The latter provider”s brand is O2 and between May 2013 and February 2014 it launched four advertising campaigns to promote new pay as you go products and services. The applicant claimed that the respondent had advertised unlimted internet in November 2013 and unlimted calls in February 2014 for ten euros without making it clear that a twenty euros top-up was in fact required to obtained these offers. As a result the applicant argued that the respondent had engaged in misleading advertising and had therefore breached s.71 Consumer Protection Act 2007 as well as Regulation 5 European Communities (Misleading and Comparative Market Communications) Regulations 2007. These proceedings, which were commenced by originating notice of motion under Order 84B of the Rules of the Superior Courts, did not seek to deal with the substantive issues raised by the applicant but rather concerned the proper procedure to be adopted. The applicant argued that the case should proceed on affidavit evidence while the respondent argued that it should proceed by way of plenary hearing.
Held by Barton J., that he only had to consider if the case should proceed on affidavit evidence or by plenary hearing. He stipulated that under rule 7 of Order 84B proceedings are generally dealt with on affidavit and it will only be exceptionally that a plenary hearing is required, such as when there is a substantial dispute of fact or when it is in the interests of justice.
Barton J. concluded that in this case there was a substantial dispute of the material facts. These included whether the respondent had actually engaged in misleading advertising, whether the applicant had used similar advertising campaigns and whether the average consumer could be or was at risk of being misled. Issues also arose regarding whether the Advertising Standards Board had agreed that top-up information could be placed in the footnotes of advertisements subject to the respondents agreeing to terms and conditions. Furthermore, it was contended that there was no evidence that the advertising had misled consumers into leaving the applicant in order to join the respondent.
As a result Barton J. held that the proceedings could not proceed on avidavit evidence but rather should be determined by plenary hearing with the benefit of cross-examination.
1. The applicant has brought these proceedings against the respondent by way of originating notice of motion pursuant to O. 84B of the Rules of the Superior Courts 1986, as amended, for certain reliefs pursuant to the provisions of s. 71 of the Consumer Protection Act 2007 ("the Act of 2007"), and Regulation 5 of the European Communities (Misleading and Comparative Market Communications) Regulations 2007 ("the 2007 Regulations").
2. The notice of motion was grounded on the affidavits of Keith Daly, Manager of the applicant's prepaid customer base in Ireland and Ann Mulcahy, Head of Brand and Marketing Communications in Ireland. Their affidavits were sworn on 21 st February, 2014. The respondent's statement of grounds of opposition was delivered in reply to the notice of motion and is dated 21 st March, 2014. It was grounded on the affidavit of Cliodhna O'Sullivan, the respondent's general counsel and company secretary in Ireland and sworn on the same date.
3. The essence of the applicant's claim against the respondent is for various orders prohibiting the respondent from engaging in misleading advertising in respect of its Pay-As-You-Go mobile phone products. Both the applicant and the respondent provide telecommunication services in the State, including mobile phone services. The respondent's brand in Ireland is 02 and these proceedings concern advertisements of that company.
4. In or around early May 2013, the respondent's company, 02 launched a new Pay-As-You-Go product called "Freedom" which was advertised in a number of ways set out in the affidavit of the applicant's Ann Mulcahy. No complaint is made about this advertising campaign because whilst there was a large €10 sign alongside the offer of "unlimited calls" to "all mobiles or landlines", it was also made clear that a customer had to pay €20 by way of a top up in order to obtain the product on offer.
5. A further phase of this campaign was launched in July 2013. Advertising in this campaign was much more focused on the "Freedom" brand than on price. For the reasons set out on affidavit, the applicant did not consider that the advertisements placed as part of either the May or July campaigns were sufficiently misleading so as to warrant legal action.
6. A farther campaign, however, was launched in November 2013. The respondent was now advertising "unlimited internet" for €10 on its Pay-As-You-Go service and these advertisements were placed in a variety of marketing streams including billboards, buses, bus shelters, shopping centres and the like as well as in O2 retails stores. Included amongst these were a number of special advertisements at bus shelters which emphasised the € 10 price point. In some cases, the unlimited internet offer for €10 was made without any language appearing on the advertisement informing customers that in order to obtain unlimited internet, a top up of at least €20 was in fact required. In other cases, there was writing but it was in extremely small print. The applicant contends that the average consumer could hardly have seen that there was any small print, let alone be able to read what the small print actually said. The applicant considered these advertisements to be misleading and to be in breach of both the Act of 2007 and the 2007 Regulations. Certain correspondence passed between the applicant and respondent in relation to this matter. The response of the respondent, in essence, was that there was nothing unfair or misleading and that they had done nothing more than the applicant itself and that their campaign was compliant with "industry practice", a suggestion completely disputed by the applicant. The situation, however, was, it seems, defused as the campaign was due to finish in December 2013 and on that basis, the applicant ultimately decided not to bring an application before the High Court. It was also assumed by the applicant that following the exchange of correspondence and certain commitments made by the respondent that the respondent would not seek to run a similar advertising campaign in the future, however, in February 2014, the respondent did engage in another advertising campaign substantially similar to that which was run in November except that instead of advertising "unlimited internet" for €10, the respondent was advertising "unlimited calls" for €10. Again, the complaint was that these advertisements were misleading because whilst there was notification that in order to avail of the offer, a top up of least €20 was required, this was in such small print that the average consumer would hardly see it let alone read it. This amounted to the same objection which the applicant had taken to some of the advertisements in November.
7. The applicant sought an undertaking from the respondent that it would cause the February 2014 campaign to "come down" and that it would not engage in similar misleading advertising campaign in the future. The respondent declined to comply with this request and accordingly, these proceedings were instituted.
8. The matter now before the court relates not to the substance of the application or the relief sought but the way in which the issues which have arisen between the parties should now properly be disposed of.
9. It appears that the respondent had assumed, having regard to the nature of the issue between the parties and the relief being sought, that the applicant would deliver a points of claim to which the respondent would then deliver a points of defence, following which there would discovery between the parties and that thereafter the matter would proceed to plenary hearing.
10. No agreement could be reached between the applicant and the respondent in relation to the appropriate and proper procedure to be adopted after the filing of the various affidavits on behalf of both parties. Accordingly, the respondent applied to the Deputy Master for directions. On the hearing of the application, the matter was transferred to the Judge's List.
11. When the case came on for hearing before me there was broad agreement between the parties that the essential issue between them was the manner in...
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