The High Court has refused Tesco Ireland’s application to immediately restrain Dunnes Stores from publishing comparative price advertisements which Tesco claimed gave shoppers a misleading impression of price differences between the two retailers.
The dispute arose from newspaper advertisements published in December 2009 comparing Dunnes prices for products including Guinness, Carlsberg, Budweiser, Wolf Blass wine, Carte Noire coffee, Domestos bleach and Charmin toilet tissue with Tesco prices.
Tesco alleged that Dunnes was generally comparing promotional prices available for limited periods with Tesco’s standard prices, without making that distinction sufficiently clear beside the advertised prices. Dunnes disputed that claim. It maintained that the prices were accurate when published, that promotional periods were disclosed and that consumers would understand the advertisements in their Christmas retail context.
Tesco began proceedings on December 11 and sought urgent injunctions under the Consumer Protection Act 2007 and regulations governing misleading and comparative marketing communications.
Miss Justice Laffoy held that those provisions did not give the High Court jurisdiction to grant interim or interlocutory relief of the kind initially sought. Applying an earlier Supreme Court ruling involving Dunnes Stores, she concluded that the statutory scheme contemplated final orders after determination of whether advertising was misleading.
Tesco then argued that the court could make such a final order immediately. The judge refused. Dunnes had prepared to answer an interlocutory application and would be unfairly prejudiced by a final determination without a full opportunity to test Tesco’s evidence.
There were also substantial factual disputes. Dunnes produced examples of what it said were similar Tesco advertising practices, while Tesco disputed those claims. The judge found that the complexities of retail pricing, promotions and advertising could not safely be resolved solely on competing affidavits without cross-examination.
The application was therefore refused. The court left open the possibility that Tesco could continue the proceedings under the more appropriate statutory procedure in Order 84B of the Rules of the Superior Courts.