High Court dismisses injunction claim against supermarket advertising due to unresolved factual disputes on affidavit evidence.

Neutral Citation Number: [2009] IEHC 569

THE HIGH COURT

2009 11281 P

BETWEEN

TESCO IRELAND LIMITED

PLAINTIFF

AND

DUNNES STORES

DEFENDANT

Judgment of Miss Justice Laffoy delivered on the 23rd day of December, 2009.

The plaintiff’s claim

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.

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

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”.

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.

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

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

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.

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”.

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.

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

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: “Subject to availability….All

these lines are promotional prices except Avonmore Soup, Domestos, Viennetta… TESCO PRICES CHECKED ON

09.12.09”.

According to the plaintiff, referring to the instore display of the defendant on 10th December 2009, the Blossom Hill

promotion was available until 12th December 2009, whereas the Tesco price was its standard price. In respect of

Domestos, the instore display indicated that this promotion was available until 12th December 2009, whereas the

Tesco price was again its standard price. In respect of Charmin, the instore display indicated that the Dunnes price,

which was on promotion until 29th December 2009, whereas the Tesco price was once again its standard price.

The defendant’s position is again that this advertisement is accurate. All Dunnes prices are promotional except

those specified. It says that the wording used – “all these lines are promotional prices” – is identical to that used by

the plaintiff in its advertisement of 6th December 2009. In respect of the Domestos specifically, it says that its

price is in fact a long-term price (which refers to a price for 28 successive days within the previous 3-month period)

because that product was priced at €2 for all but 8 days in the last 3.5 months. It denies that anything in the

advertisement is misleading and states that its meaning would be understood by the consumer, which is more

important than the perception of a competitor.

A further complaint has been made in a supplemental affidavit filed on behalf of the plaintiff since these proceedings were

initiated in relation to an advertisement in The Star on 12th December, 2009 and in the Sunday Independent on 13th

December, 2009 in relation to which the plaintiff takes issue with another aspect of the defendant’s advertising. In

addition to the general complaint that it compares standard Tesco prices with promotional Dunnes prices, it is claimed

that it compares the price of clementines and pineapples of different weights or sizes in the plaintiff’s and defendant’s

stores. The defendant has refuted this.

In addition to disputing the plaintiff’s contention that it is in breach of the law as alleged, the defendant defended the

application on the basis that the proceedings have been improperly constituted, not having been commenced in

accordance with the requirements of O. 84B of the Rules of the Superior Courts (the Rules), invoking, as they do, the

provisions of s. 71 of the Act of 2007 and Regulation 5 of the 2007 Regulations. Further, the defendant contends that

neither s. 71 nor Regulation 5 confers on the Court jurisdiction to grant interlocutory relief to the plaintiff.

At the hearing of the application, counsel for the plaintiff properly drew the Court’s attention to a decision of the Supreme

Court which appears to support the defendant’s contention that it is not open to the plaintiff to grant interlocutory relief:

Dunnes Stores v. Mandate [1996] 1 I.R. 55. However, counsel for the plaintiff submitted that, having regard to legislative

changes since that case, the Court has jurisdiction to grant interlocutory relief. Alternatively, it was submitted on behalf

of the plaintiff that the Court can make a final order on this application.

Because of the significance of the jurisdictional point raised, it is necessary to consider the course of this application in

some detail.

The history of the application

By plenary summons of 11th December, 2009, the plaintiff seeks various orders restraining and prohibiting the defendant

from engaging in what it alleges are prohibited and misleading comparative marketing communications and commercial

practices. On 11th December 2009, this Court gave the plaintiff leave to issue and serve notice of motion returnable on

Monday 14th December. In this notice of motion, the plaintiff seeks the following reliefs:

(a) an interlocutory order pursuant to the the 2007 Regulations restraining the defendant from engaging

in or continuing to engage in prohibited comparative marketing communication;

(b) an interlocutory order pursuant to the 2007 Regulations restraining the defendant from engaging in

or continuing to engage in misleading marketing communication;

(c) an interlocutory order pursuant to Section 71 of the Act of 2007 prohibiting the defendant from

engaging in or continuing to engage in misleading commercial practices;

(d) an order pursuant to either or both the Act of 2007 and the 2007 Regulations restraining the

defendant from engaging in comparative advertising whereby the defendant compares the price of some

of its own products to those of the plaintiff without stating or stating clearly that the prices identified

by the defendant are promotional prices available for a limited period only;

(e) an order pursuant to either or both the Act of 2007 or the 2007 Regulations prohibiting the

defendant from advertising or continuing to advertise in terms identical to the advertisements which are

identified in the schedule to the notice of motion;

(f) an interlocutory order pursuant to either or both the Act of 2007 or the 2007 Regulations prohibiting

the defendant from engaging in any advertising whatsoever whether in printed matter or broadcast

whereby the defendant compares prices of both the plaintiff and the defendant for identical products

without clearly disclosing that the defendant’s prices are promotional and for a limited period only.

The evidence before the Court on the plaintiff’s application, which was heard on 17th and 18th December, 2009, is

affidavit evidence. The plaintiff’s application is grounded upon the affidavit of Kenneth Jacobs, marketing director in the

plaintiff company, sworn on 11th December 2009. Mark Ody, a marketing consultant, has also sworn an affidavit on the

plaintiff’s behalf on 11th December 2009. The defendant’s initial short replying affidavit was sworn by Vincent Hutton,

head of food finance with the defendant, on 14th December 2009, followed by a comprehensive affidavit sworn by Richard

Reeves, director of food with the defendant, on 16th December 2009. Mr. Jacobs has sworn a further affidavit in reply to

this on 17th December 2009, to which Mr. Reeves in turn replied on the same date. The defendant has also filed an

affidavit by Ursula Carlin, an advertising and brand strategist, sworn on 16th December 2009. The timeframe within which

the defendant had to respond to the plaintiff’s affidavits was very tight, because the plaintiff contended that it was

crucial that the Court address the issue as early as possible in order to minimise the effect of the defendant’s advertising

on the plaintiff in the lead up to Christmas.

At the hearing of the application counsel for the plaintiff contended that, under para. (d) of the relief claimed on the

notice of motion, the plaintiff had sought a final order and that it was open to the Court to make such an order. However,

counsel submitted that an order in the following terms would address the key issue on the plaintiff’s claim – that the

defendant’s advertising is misleading – with greater clarity and sought an order in these terms:

“An order directing the defendant –

(a) when making a written comparative marketing communication (including without prejudice to the

generality of the foregoing, advertisements in the print media, circulars, brochures, flyers, and similar

forms of advertising), which communication compares the prices of specific products sold by the plaintiff

and the defendant respectively, and where the availability of the defendant’s price expires by a certain

date, to state that fact in words which are clearly legible and immediately adjacent to the price of the

specific product in question; and

(b) when making a comparative marketing communication on radio or television comparing the prices of

specific products sold by the plaintiff and the defendant respectively, and where the availability of the

defendant’s price expires by a certain date, to include in the advertisement a statement that the

defendant’s prices quoted are promotional prices which expire on the date on which they expire.

Counsel for the defendant understandably complained that the defendant had been “wrong-footed” in being faced with a

claim for a final order when his understanding and that of his client was that the defendant was in Court to meet a case

for an interlocutory order, which required the plaintiff to show no more than that there was a fair issue to be tried, that

damages would not be an adequate remedy for the plaintiff and that the balance of convenience lay in favour of granting

the injunction. The understanding on the defendant’s side was that the matter would go to a plenary hearing where the

defendant would have an opportunity to cross-examine the plaintiff’s witnesses and to fully argue its defence. In my

view, the defendant is justified in its complaint that it is not fair that the plaintiff should have to face a case seeking a

final order having regard to the history of the application as outlined.

It is necessary to consider the statutory framework in order to determine what jurisdiction the Court has.

The statutory framework

The Act of 2007

Counsel for the plaintiff identified three sections of the Act of 2007 which it was alleged the defendant is in breach of: s.

43, s. 44 and s. 46, all of which are in Chapter 2 of Part 3 of the Act of 2007, which deals with misleading commercial

practices. Section 42 contains a general prohibition on misleading commercial practices.

Section 43(1) provides that a commercial practice is misleading if it includes the provision of false information in relation

to any matter set out in subs. (3) and that information would be likely to cause the average consumer to make a

transactional decision that the average consumer would not otherwise make. The matter set out in subs. (3) which

counsel for the plaintiff submitted is relevant is to be found in para. (c) which refers to “the price of the product, the

manner in which the price is calculated or the existence or nature of a specific price advantage”. Sub-section (4)

provides that it is not a defence in any proceeding to show that the information is factually correct. Sub-section (5)

provides that, in determining whether a commercial practice is misleading, the commercial practice shall be considered in

its factual context, taking account of all its features and circumstances. Counsel for the plaintiff stressed that in making

such determination the Court must have regard to the everyday realities of the situation.

Section 44(1) provides that a commercial practice involving marketing or advertising is misleading if it would be likely to

cause the average consumer, inter alia, to make a transactional decision that the average consumer would not otherwise

make.

Counsel for the plaintiff submitted that s. 46(1) is the most directly relevant prohibition. Sub-section (1) provides as

follows:

“A commercial practice is misleading if the trader omits or conceals material information that the average consumer

would need, in the context, to make an informed transactional decision (“material information”) and such practice

would be likely to cause the average consumer to make a transactional decision that the average consumer would

not otherwise make.”

Particular emphasis was laid on subs. (2) of s. 46, which provides that a commercial practice is misleading if the trader

provides material information “in a manner that is unclear, unintelligible, ambiguous or untimely”. Sub-section (5) provides

that, in determining whether a commercial practice is misleading under the section, the commercial practice shall be

considered in the factual context, taking into account all of its features and circumstances.

Section 71 is contained in Chapter 2 of Part 5, which deals with civil proceedings. The expression “prohibited act or

practice” in s. 71 is defined in s. 67 as including “any unfair, misleading or aggressive commercial practice under Part III”.

Sub-section (2) of s. 71 provides:

“Any person, including the Agency or other public body that is prescribed for the purposes of this sub-section, may

apply to the … High Court for an order prohibiting a trader from committing or engaging in a prohibited act or

practice.”

The Agency means the National Consumer Agency (the Agency). Sub-section (3) provides that an application under subs.

(2) shall be on notice to (a) the trader or person against whom the order is sought, and (b) the Agency, if the applicant

is not the Agency. By virtue of subs. (5), where the applicant is not the Agency, the Court may not make an order unless

the Agency has been afforded an opportunity to be heard and adduce evidence. In this case, in compliance with that

provision, notice was served on the Agency. Counsel appeared on behalf of the Agency at the hearing of the application

and informed the Court that the Agency was not participating in the application but would maintain a watching brief.

The other provisions of s. 71 which are relevant are:

(a) Sub-section (4) of s. 71 which provides:

“In determining an application under this section, the court shall consider all

interests involved and, in particular, the public interest.”

(b) Sub-section (7) which gives the Court a discretion to direct that a corrective statement be published.

(c) Sub-section (6) which provides:

“If the court considers it necessary or appropriate in the circumstances, taking into account all

interests involved and, in particular, the public interest, the court may make an order under this section

without proof of any actual loss or damage or any intention or negligence on the part of the trader.”

On this application, counsel for the plaintiff made it clear that its only objective was to restrain the alleged offending

conduct and that it was not claiming damages in the proceedings.

The 2007 Regulations

The purpose of the 2007 Regulations was to transpose Directive 2006/114 EC (the Directive) into Irish law. The

substantive provision of the 2007 Regulations on which the plaintiff relies is Regulation 3 which provides that a trader shall

not engage in misleading marketing communication and goes on to provide that a marketing communication is misleading if

–

(a) in any way (including its presentation), it deceives or is likely to deceive in relation to any matter

set out in paragraph (4) the trader (sic) to whom it is addressed or whom it reaches, and

(b) (i) by reason of its deceptive nature it is likely to affect the trader’s (sic) economic behaviour, or

(ii) for any reasons specified in this paragraph, it is injured or is likely to injure a competitor.

It was suggested by counsel for the plaintiff that there may be an error in paragraphs (a) and (b) and that the reference

to trader should be a reference to consumer. That suggestion would appear to be correct. The matter set out in

paragraph (4) which counsel for the plaintiff pointed to as being relevant on this application is to be found in sub-

paragraph (c) – the price of the product, the manner in which the price is calculated “or the existence or nature of a

specific price advantage”.

Counsel for the plaintiff also invoked Regulation 4 which prohibits a trader engaging in a prohibitive “comparative marketing

communication”, which is defined in Regulation 2 as meaning “any form of representation made by a trader that explicitly

or by implication identifies a competitor of the trader or a product offered by such a competitor”. Paragraph (2) of

Regulation 4 provides that a comparative marketing communication is prohibited if, as regards the comparison, inter alia, it

is misleading under Regulation 3, or is a misleading commercial practice under any of s. 43 to s. 46 of the Act of 2007 or,

as provided in sub-paragraph (d), on which counsel for the plaintiff laid particular emphasis, “it does not objectively

compare one or more material, relevant, verifiable, and representative features of those products, which may include

price”.

The provision in the 2007 Regulations dealing with Court applications is Regulation 5, which, in paragraph (1) provides as

follows:

“A trader or other person may, upon giving notice of the application to the trader against whom the order is sought,

apply to ... the High Court for an order prohibiting that trader from –

(a) engaging in, or

(b) continuing to engage in,

a misleading marketing communication or a prohibited comparative marketing communication.”

That is the provision on which the plaintiff relies and, as counsel for the plaintiff pointed out, it contains no prohibition on

seeking interlocutory relief.

The other provisions of Regulation 5 of general application are:

(a) paragraph (2) which reverses the burden of proof to the extent that it provides that, if the truth of

a factual claim in a representation is an issue, and the trader against whom the order is sought does

not establish on the balance of probabilities that the representation is true, then the representation

shall be presumed to be untrue;

(b) paragraph (3) which provides that, in determining an application under Regulation 5, the Court shall

consider all interests involved and, in particular, the public interest;

(c) paragraph (4) which provides that, where necessary or appropriate in the circumstances, taking into

account all the interests involved and, in particular, the public interest the Court may make an order

under Regulation 5(1)(b) without proof of any actual loss or damage on the part of the applicant, or any

intention or negligence on the part of the respondent; and

(d) paragraph (5) under which the Court is given a broad discretion to impose terms or conditions in the

order that the Court considers appropriate, including a requirement that the respondent publish a

corrective statement at its own expense and in any manner the Court considers appropriate in respect

of the matters the subject of the order.

The Directive

Counsel for the plaintiff referred the Court to a number of provisions of the Directive, but the provision of most relevance

to the argument advanced is sub-article 3 of Article 5. Sub-article 1 of Article 5 provides that Member States shall ensure

that adequate and effective means exist to combat misleading advertising and enforce compliance with the provisions on

comparative advertising in the interests of traders and competitors. Sub-article 3 provides:

“ ... Member States shall confer upon the courts or administrative authorities powers enabling them, in cases where

they deem such measures to be necessary taking into account all the interests involved and, in particular, the

public interest:

(a) to order the cessation of, or to institute appropriate legal proceedings for an order

for the cessation of, misleading advertising or unlawful comparative advertising; or

(b) if the misleading advertising or unlawful comparative advertising has not yet been

published but publication is imminent, to order the prohibition of, or to institute

appropriate legal proceedings for an order for the prohibition of, such publication.

...

Member States shall make provision for the measures referred to in the first sub-paragraph to be taken under an

accelerated procedure either with interim effect or with definitive effect, at the Member States’ discretion.”

Dunnes Stores Ltd. v. Mandate

The regulation at issue in Dunnes Stores Ltd. v. Mandate was contained in predecessor regulations to the 2007

Regulations – European Communities (Misleading Advertising) Regulations 1988 (S.I. No. 134 of 1988), which were revoked

by the 2007 Regulations. The regulation in question, Regulation 4, had features which are now reflected, if not entirely

replicated, in s. 71 of the Act of 2007 and Regulation 5 of the 2007 Regulations.

The Court order provided for in Regulation 4 was an order prohibiting the publication, or further publication, of advertising

the publication of which was misleading advertising. The application was to be made on notice and it could be made by

any person, including the Director of Consumer Affairs and Fair Trade. Where the application was made by the Director

following non-compliance with a request by the Director to discontinue or refrain from advertising, there was no

requirement to prove actual loss or damage or recklessness or negligence on the part of the advertiser. The Court had a

discretion to require publication of its decision in full or in part and to require publication of a corrective statement. In

relation to the evidential burden, the Court had a discretion to order the advertiser to furnish evidence as to the

accuracy of any factual claims made and to deem any factual claim to be inaccurate if the evidence demanded was not

furnished or was deemed to be insufficient. It was provided that, in the exercise of its discretion, the Court should take

into account all interests involved, and, in particular, the public interest.

The Supreme Court found that the provisions of the 1988 Regulations must be construed as providing that an order made

by the High Court under Regulation 4(1) prohibiting the publication of misleading advertising is a final order. Delivering the

decision of the Supreme Court, Blayney J. explained the basis of that decision (at p. 63) as follows (as set out in the

unreported judgment):

“A number of considerations lead to this conclusion:

(1) There is nothing in the manner in which the order which may be made by the High Court under

Regulation 4(1) is described which would be consistent with its being a temporary order only. It is

described as an order: ‘prohibiting the publication, or further publication, of advertising the publication

of which is misleading advertising’.

(2) Under paragraph 4 of Regulation 4 the court may require publication of its decision in full and require

publication of a corrective statement. This would be consistent only with a final decision having been

made that the advertisement was misleading, a finding which would not be made on an interlocutory

application.

(3) Paragraph 5 of Regulation 4 envisages an advertiser being required to furnish evidence of the

accuracy of any factual claims made in any advertisement and gives the Court the right to deem any

factual claim to be inaccurate if the evidence is not furnished or is deemed insufficient. There is a clear

implication here that the Court, on the application for the order, must make a finding as to whether the

advertising is or is not misleading. As already stated, such a finding would not be made on an

application for an interlocutory injunction.

(4) Under paragraph 6 of Regulation 4, the Court, in deciding, in the exercise of its discretion, whether

to make an order prohibiting the publication of misleading advertising, is required to take account ‘of all

the interests involved and in particular the public interest’. This requirement would be inappropriate if all

that the Court was considering was the right of an individual plaintiff to an interlocutory injunction, an

issue which would affect solely the parties to the proceedings.”

It seems to me that each and every one of those considerations applies in the case of an application under s. 71 of the

Act of 2007 or under Regulation 5(1) of the 2007 Regulations. I discern no difference or distinction of substance between

Regulation 4(1) of the 1988 Regulations, on the one hand, and the provisions of s. 71 and Regulation 5 of the current

regulations, on the other hand, which would preclude a finding that such considerations apply to the current statutory

and regulatory provisions.

Conclusion on interlocutory/final order issue

I have come to the conclusion that, following the decision of the Supreme Court in Dunnes Stores Ltd. v. Mandate, the

Court’s jurisdiction under s. 71 and under Regulation 5(1) is to make a final order and that the Court does not have

jurisdiction to grant an interim or interlocutory order.

It is true, as counsel for the plaintiff submitted, that there are two regimes which the plaintiff may invoke and has invoked

in seeking a remedy for its complaints: the procedure under the Act of 2007 and the procedure under the 2007

Regulations which transpose the Directive. However, even though, under the Directive, the State is obliged to make

provision for an accelerated procedure for obtaining a remedy, the State is given the option of providing such a procedure

for a remedy with either interim effect or with definitive effect. It seems to me that in reflecting in the 2007 Regulations

the features of the 1988 Regulations which led the Supreme Court to conclude that the jurisdiction of the Court under the

1988 Regulations was to make a final order rather than an interlocutory order, the State, as it was entitled to do, has

opted for a procedure with definitive effect. Therefore, in my view, it is not open to the Court, in reliance on the

Directive, to grant interim or interlocutory relief on an application under Regulation 5.

The procedural issue

Order 84B of the Rules contains the procedure for seeking certain relief in the High Court where the relief is statutory in

nature, for example, relief being sought by a relevant authority, which, broadly speaking, means a public body, seeking to

prohibit or restrain any person from taking any step or doing any thing. While I am not satisfied that an application under

s. 71 of the Act of 2007 or under Regulation 5 of the 2007 Regulations by an applicant other than the Agency comes

strictly within the letter of the definition of “relevant application” in Order 84B, it certainly comes within its spirit.

Moreover, rule 1(2)(b) provides that in the case of an application which is statute based, other than a “relevant

application”, the Court has a discretion to direct that Order 84B shall apply, where it determines that it is just and

convenient to do so. It seems to me that to adopt the procedure under O. 84B, rather than the plenary procedure of the

High Court, would be fairer and more convenient in the case of an application under s. 71 or under Regulation 5.

However, as was pointed out by counsel for the plaintiff in reliance on O. 124, r. 1 of the Rules, non-compliance with the

Rules is not necessarily fatal and, even if this application should have been brought under O. 84B, the fact that it was

initiated by plenary summons, in my view, is not necessarily fatal.

Whether a final order should be made

As I have already indicated, I consider that the defendant was justifiably aggrieved at being faced at the hearing of the

action with an application for a final order when it was its understanding that what it was facing was an application for

interlocutory relief in a plenary action. That was also the Court’s understanding, when leave for short service was given

on 11th December, 2009. I am of the view that it would be grossly unfair to the defendant to make a final order in the

circumstances, even if it were possible to do so.

However, I am of the view that, given the level of conflict of fact disclosed on the affidavit evidence, it is not possible to

reach a conclusion that the defendant has been in breach of the Act of 2007 or the 2007 Regulations, even taking

account of the evidential provisions included in s. 71 of the Act of 2007 and Regulation 5 of the 2007 Regulations. The

factual dispute in relation to the advertisements in respect of which the plaintiff complains, which I have outlined in some

detail earlier, is compounded by the defendant’s assertion of the plaintiff’s involvement in similar advertising practices.

Nineteen examples are given in the affidavits filed on behalf of the defendant. Although the assertions of the defendant

are addressed in a subsequent affidavit by the plaintiff’s deponent, in my view, it would be dangerous on the evidence

before the Court, without more, to make a judgment on whether the defendant was in breach of the Act of 2007 or the

2007 Regulations in procuring the publication of the advertisements complained of. Moreover, the totality of the evidence

before the Court suggests a degree of subtlety in retail pricing, marketing and advertising which, it seems to me it is

difficult, if not impossible, to grasp on an application on affidavit evidence without the possibility of cross-examining

witnesses.

For the foregoing reasons I am not prepared to accede to the plaintiff’s application. However, this is not necessarily the

end of the matter. I will hear further submissions in relation to the reconstitution of the proceedings so that they can

continue in accordance with O. 84B, if the plaintiff so wishes.

Material non-disclosure

For completeness, I reject a submission made by the defendant that there was material non-disclosure on the ex parte

application on the part of the plaintiff which would justify refusing the application. In this case, the ex parte application

was merely for short service and it was always understood that the defendant would be given an opportunity to respond

to the application.