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Bringing Down Competitors’ Advertising In Ireland - An Example Case
The plaintiff, Tesco Ireland Limited, sought to restrain by injunction a certain form of comparative advertising by the defendant, Dunnes Stores. In essence, Tesco claimed that Dunnes Stores’ advertisements, which compared Dunnes Stores’ promotional prices with Tesco’s standard prices were in breach of the Consumer Protection Act 2007 (2007 Act) and the European Community (Misleading and Comparative Marketing Communications) Regulations 2007 (Regulations), as Dunnes Stores did not clearly state within the relevant advertisements that the prices were promotional and for a limited period of time.
Under section 67 of the 2007 Act, the National Consumer Agency was also put on notice and afforded an opportunity to be heard and adduce evidence (as is required in cases involving claims of unfair, misleading or aggressive commercial practices), however, in this instance, the Agency chose not participate in the application and confirmed that it would maintain a watching brief.
Dunnes Stores contended that the information contained in its advertisements was accurate as at the date of publication and not capable of misleading consumers in the context of a daily changing advertising environment where pricing approaches are complex. On a more fundamental level, Dunnes Stores also claimed that the Regulations and the 2007 Act did not confer on the Court the jurisdiction to grant interlocutory relief, i.e. relief before full hearing at trial, and drew the Court’s attention to the Supreme Court decision of Dunnes Stores v Mandate  1 I.R. 55. In reply, Tesco submitted that, having regard to legislative changes since the Supreme Court’s decision, the Court has jurisdiction to grant interlocutory relief under the 2007 Act and Regulations, and that it was also open to the Court to make a final order.
The High Court, in applying the previous decision of the Supreme Court in Dunnes Stores v Mandate, held that the Court does not have jurisdiction to grant an interim or interlocutory order under the 2007 Act and/or Regulations, and the Court could therefore only make a final order in this case. However, the Court considered that it would be ‘grossly unfair’ to the defendant to make a final order in the circumstances as the current application against the defendant was only for interlocutory relief. Also, the Court found that the evidence led by the parties at the hearing was inadequate and that it would be dangerous to make a final order on the facts as presented. As a result, Tesco’s application was dismissed.
The decision confirms that actions for prohibition orders to bring down misleading advertising under the Act and/or Regulations cannot be made on an interlocutory basis but must be made in a full proceeding. While this sounds onerous and protracted, in practice it will still be possible to transfer proceedings into the Commercial Court and to seek an expedited trial in a very short time frame.