The High Court refused Lidl Ireland GmbH’s application to stop the Irish Farmers Association (IFA) and two of its officers from republishing two advertisements while Lidl’s defamation action proceeds.
Mr Justice Allen ruled on 4 June 2021 that Lidl had not met the statutory threshold for an interlocutory injunction under section 33 of the Defamation Act 2009. He was not satisfied that the advertisements clearly and only meant that Lidl’s own-brand milk was not Irish, or that its labelling and packaging were misleading about the origin of its products. He also was not satisfied that the defendants had no defence reasonably likely to succeed. The ruling did not determine whether the advertisements were defamatory or whether any defence would ultimately succeed; those issues remain for the action.
Lidl sought to restrain further publication of two advertisements published in March 2021. It argued that they falsely implied that its milk was sourced abroad and that it misled customers about product origins. The IFA and its president, Tim Cullinan, and deputy president, Brian Rushe, stood over the advertisements and disputed Lidl’s pleaded meanings.
The defendants said the advertisements raised concerns about Lidl’s branding and whether it could mislead consumers into thinking products came from particular Irish producers. They relied on evidence about product labels and market research. Justice Allen said he could not attach significant weight to the survey at this stage, citing concerns about the questions and whether Lidl customers, rather than the general population, should have been surveyed. He nevertheless found the defendants had a bona fide case to make that Lidl’s brand names and product presentation could convey that products came from particular farms in Ireland. Whether the labelling was misleading would be for a jury.
The judgment also recorded evidence that Lidl’s regular milk products in issue were sourced from farms in the State, with some packs processed and packaged in Omagh. Evidence indicated that Lidl’s separately described organic milk could be sourced from Northern Ireland as well as the Republic. The judge said the defendants could point to evidence relevant to their proposed defence, but did not decide the truth of their allegations.
The court provisionally considered the defendants successful on the motion and said Lidl should pay the costs. Justice Allen was inclined to stay execution of the costs order until the action is determined. He listed the matter for mention in two weeks to hear submissions on the appropriate costs order. The judgment does not record a final costs order.