Supporting Documents:
115-17 Respndt Notce.DOCX115-17 AFL.pdf

THE SUPREME COURT

DETERMINATION

BETWEEN

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to the Plaintiffs to appeal to this Court from the Court of Appeal

REASONS GIVEN:

1. Jurisdiction

This determination relates to an application by the plaintiffs in the underlying proceedings (“Aldi”) for leave to appeal, under Art. 34.5.3 of the Constitution, from the judgments of the Court of Appeal (Ryan P., Peart and Hogan JJ) delivered on the 6th April 2017 and 17th May 2017. The order appealed against was made on the 17th May 2017 and perfected on the 28th June 2017. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court.

The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave a having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

2. The Proceedings

In the proceedings generally Aldi alleged infringement of certain trademarks by the defendants (“Dunnes”) arising out of an advertising campaign run by Dunnes. Further details of the precise issues raised are set out both in the notice of application for leave to appeal and the respondent’s notice filed in respect of this application and also in the judgments of the High Court and the Court of Appeal.

The High Court directed that the proceedings should consist of two modules with the first module addressing whether Dunnes had in fact infringed Aldi’s trademarks and a second potential module addressing the question of damages. For reasons which will become clear the damages module has not yet been heard.

As set out in a judgment of the 9th June 2015, the High Court (Cregan J.) concluded that Dunnes had infringed Aldi’s trademarks and further breached certain legislation. In a further judgment of the 21st July 2015, Cregan J. concluded that Aldi was entitled to injunctive relief arising out of the breaches which had been found.

From those judgments an appeal was brought to the Court of Appeal.

3. The Order appealed against

On the 6th April 2016 the Court of Appeal held that certain of the determinations made by the High Court concerning breach were well founded, but overturned the High Court determination that actions carried out in respect of certain other matters (referred to as Specific Comparison Labels and Shelf-Edge Labels) were unlawful. The Court of Appeal further determined that, in those circumstances, Aldi was not entitled to injunctive relief. In a later, ex tempore, judgment given on the 17th May 2017 the Court of Appeal declined to order a re-trial and awarded Dunnes 60% of their costs both in the High Court and the Court of Appeal.

While Aldi suggests, in their notice of application, that they wish to appeal from the entire judgment of the Court of Appeal it must be doubted whether that is a fully accurate statement of Aldi’s position having regard to the fact that Aldi succeeded in upholding the decision of the High Court concerning certain breaches albeit that the Court of Appeal did not find it appropriate to uphold the injunctive relief granted. It is assumed that Aldi does not intend to suggest that the Court of Appeal was wrong insofar as it upheld, in part, the findings of the High Court which were in its favour.

4. The Contentions of the Parties

The notice of application for leave to appeal together with the response is published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis upon which the applicant suggests that the constitutional threshold for leave to appeal has been met.

In essence the contention made on behalf of Aldi is that the proper interpretation of the law in this area has the potential to affect any issues which may arise where competitors use each others trademarks in the context of advertising. Within that broad field it is further argued that the interpretation placed on the relevant law by the Court of Appeal is incorrect and is also incompatible with European legislative measures and decisions of the Court of Justice. On that basis it is said that issues of general importance arise so as to meet the constitutional threshold.

Under the heading “interests of justice” much of the argument advanced seems to the Court to be little more than an assertion that an injustice was done to Aldi by reason of what are said to be errors by the Court of Appeal.

Much of Dunnes respondent notice is concerned with suggesting that the scope of the case itself was relatively limited and in supporting the findings of the Court of Appeal as being correct both as a matter of Irish law and having regard to relevant European legislation and the jurisprudence of the Court of Justice. On that basis it is suggested that no issue of general public importance arises. So far as the interests of justice are concerned it is suggested that the interests of justice would not be served by a further appeal not least because of the scale of the specific issues which arise in these proceedings.

5. Discussion

As is clear from a range of determinations made by this Court since the 33rd Amendment to the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court has simply been in error in some material respect the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. Rather the text of the Constitution now in place makes clear that an appeal to this Court, whether directly from the High Court under Art. 34.5.4 or from the Court of Appeal under Art. 34.5.3, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it otherwise is in the interest of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interest of justice to permit an appeal to this Court simply because it is said that the lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy for any error made by the High Court. Likewise a party which has had the opportunity to have the decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more the interests of justice will not require a further review on appeal to this Court.

Against that background it is necessary to address the basis on which it is said that the constitutional threshold is met in this case.

The Court proposes to deal first with the separate question of the interests of justice aspect of the constitutional threshold. As has already been noted the mere fact that it is said that the Court of Appeal, by being in error, has led to an injustice on a party does not lead to the constitutional threshold being met. If that were so, it would be open to any potential appellant to allege that the Court of Appeal was in error and to say that the interests of justice required a further repeal so as to remedy that injustice. That would mean that almost every case (save for appeals which were unstateable) would meet the constitutional threshold thus defeating the clear constitutional intent that, ordinarily, the decision of the Court of Appeal should be final. The Court does not consider, therefore, that any basis has been put forward for properly suggesting that the interests of justice element of the constitutional threshold is met on the facts of this case.

However, the Court is persuaded that this case does involve an issue of general public importance. As the Court has pointed out in many determinations since the coming into effect of the 33rd amendment to the Constitution, the central issue, at least in most circumstances, which the Court needs to address under this heading on an application for leave is as to whether the issues which are likely to arise on any appeal are of some significant importance beyond the facts of the individual case. The fact that the case itself may or may not properly be described as being about a relatively small amount of alleged infringements does not materially affect that assessment. Either an important issue arises which has the potential to be of general application or it does not.

Likewise a lengthy debate about whether the Court of Appeal was wrong or right is of little materiality to the issues which this Court has to decide on a leave application save in those limited cases where it can be suggested either that a point which might be important does not in fact arise in the case or a point sought to be argued is not stateable. The Court has repeatedly emphasised that the focus of the relevant sections of both the applicant’s notice and the respondent’s notice should be on identifying with some precision the legal issue(s) which it is said properly arises on the proposed appeal and suggesting why it is argued that the issue(s) concerned meets or does not meet the constitutional threshold.

It is, of course, correct, as Dunnes assert, that competition between retailers is likely to be intense. But the law imposes certain rules on the conduct of that competition. Those rules involve domestic law but also European legislation and jurisprudence. The precise boundaries between what, in that context, is permitted or not allowed has the potential to be of very considerable importance in defining the rules of permitted competition. While the overall broad principles may, to a significant extent, be clear from the existing case law and from the legislation, it does not follow that issues concerning the proper approach of the Courts in implementing those broad principles may not remain for decision. It is certainly not clear, on the basis of the limited materials which are properly before the Court on an application for leave, that issues do not remain as to the way in which those general principles should be applied such that the law would benefit from being clarified by a further appeal to this Court. In so saying the Court would wish to make it absolutely clear that it is not reaching any conclusion one way or the other on the merits of any of the points sought to be advanced on either side. Rather, the Court is making clear that it will not, save in clear cases where potential grounds of appeal are unstateable, be for the Court to attempt to assess the strength or weakness of either side’s case on a leave application. Rather, at this leave stage, the focus of the Court is on whether it seems reasonable to assume that issues of general application, which are themselves of some importance, may well arise on the appeal. At this stage the Court is satisfied that that test has been met.

In the circumstances the Court will grant leave to Aldi to pursue the grounds of appeal set out in Part 6. of its notice of application for leave to appeal. However, to use the language adopted by a full panel of the Court in its determination in Wansboro v. Director of Public Prosecutions & anor (2017) IESCDET 115, “It would be open to the case management judge to refine those grounds in the course of the case management process not least for the purposes of ensuring the maximum level of focus and precision consistent with ensuring that (the appellant) is able properly to pursue the issues of general importance identified in this determination”.

6. Conclusion

The Court, therefore, grants leave to appeal under Art. 34.5.3.

The grounds which may be pursued and the basis upon which those grounds may be refined are set out in the preceding paragraph.

And It is hereby so ordered accordingly.