The High Court has directed a plenary hearing in Vodafone Ireland Limited’s case against Telefónica Ireland Limited over advertising for O2’s prepaid mobile products, finding that material factual disputes should not be resolved on affidavits alone.
In a judgment delivered on 20 May 2014, Mr Justice Barton said the case would proceed to a hearing where evidence could be tested by cross-examination. He was deciding the procedure for the substantive application, not whether the advertisements breached consumer protection law.
Vodafone says O2 advertisements in November 2013 and February 2014 promoted “unlimited internet” or “unlimited calls” for €10, while the €20 minimum top-up needed to obtain the offers was omitted or shown in very small print. Vodafone sought orders to stop what it alleged was misleading advertising. Telefónica disputed that the advertisements were misleading and argued that prepaid customers understood minimum top-ups, that footnote disclosures were accepted in the industry, and that Vodafone used similar advertising itself. Those are parties’ positions described in the judgment, not findings by the court.
The dispute began after Vodafone sought an undertaking that the February campaign be removed and that similar advertising not be used again. When Telefónica declined, Vodafone brought proceedings under section 71 of the Consumer Protection Act 2007 and the 2007 regulations on misleading and comparative marketing communications.
The parties disagreed over how the case should proceed. Vodafone proposed determination on affidavits, with possible discovery. Telefónica argued for a plenary hearing, with points of claim and defence and discovery. The judge considered the affidavits, correspondence, advertisements and counsel’s submissions. He concluded there was a substantial dispute about material facts that could not appropriately be tried on affidavit evidence alone without cross-examination.
The order was limited to directing that the substantive application be determined by plenary hearing. Justice Barton said he would discuss consequential directions and the form of the final order with counsel. The judgment made no determination on the truth of the competing advertising claims and granted no substantive relief against Telefónica.