In recent years the English High Court has been reluctant to
entertain disputes relating to comparative advertising, and claims
for malicious falsehood in such circumstances have rarely
succeeded. In this case, however, the Court found clear evidence
that Comet’s advertisements where false and were known by
Comet to be false when published. Owen J. decided that it was
appropriate to continue an interim injunction, although he also
said that it was “to be regretted that the matter could not
be resolved without recourse to litigation. Further details about
the judgment are set out below. Note that it relates only to the
continuation of an interim injunction, and that the full hearing is
still to come, unless the parties pay heed to the judge’s
hint that the matter should not be litigated.
Currys and Comet are both well-known high street retailers of
consumer electrical and electronic goods. Both have a large number
of stores across the UK, often in retail parks and in close
proximity to each other. The two are intensely competitive on
price, and constantly monitor the other’s prices and
Currys began a promotion in November 2001 in which
they offered 10% off their marked prices for short periods. Later
that month, they launched a further promotion in which individual
stores offered to beat any price offered by a Comet store in the
same retail park by £10. In response, Comet displayed poster
advertisements in their stores which stated “The Comet price
is lower than competitors 10% off promotions and £10 price cuts.
That’s Comet sense. Other posters read “Today and every
day Comet prices will be lower than local competitors in [name of
town inserted] and “We even beat competitors 10% off and £10
off weekend promotions. In some stores, Currys advertisements were
taped to the bottom of these posters.
In December 2001, Currys obtained an interim
injunction on the basis of the tort of malicious falsehood,
restraining Comet from displaying the posters or making any
statements with a like effect. Currys sought continuation of the
injunction in February 2002.
In a judgment given on 8 February 2002, Owen J considered the
following issues and continued the injunction for the following
1. Were the statements complained of directed at
There was no doubt that this was the case. Even
though the posters did not refer to Currys by name, they made clear
reference to current promotions operated by Currys.
2. What was their meaning, and was it false?
It was clear that the posters meant that
Comet’s marked prices were lower than their
competitor’s marked prices less 10%. The claim that their
marked prices were lower than Currys “£10 off promotional
prices was nonsensical, since the Currys promotional prices were by
their nature dependent on Comet prices, but a reasonable customer
would understand the claim to mean that Comet’s marked prices
were less than Currys special promotions including the £10 off
promotion. A footnote in very small print which referred to the
“Comet Price Promise did not override the clear main message
of the posters.
The evidence showed that the claims were false, and
that Comet must have known this when the claims were made. At the
time in question, Comet’s prices were not lower than
Curry’s promotional prices. There was evidence that Comet
staff were instructed by email that Currys were offering 10% off
some goods but that they should offer 10% off Comet’s marked
prices only if challenged by customers to do so.
3. Were the statements actionable in the sense that
they were by their nature intended to be and likely to be taken
Comet had argued that the statements were
“mere puff and that they would be seen as such by consumers.
The Court rejected this argument, and decided there was a clear
distinction between mere puff such as “my goods are better
than X’s and a verifiable price statement such as “I
charge less than X for the same goods. Such a statement as to price
was plainly intended to be, and likely to be, taken seriously.
4. Were the statements published maliciously and
was there a likelihood of Currys sustaining actual damage as a
consequence of their publication?
In this context “malicious means with
knowledge or recklessness as to the falsity of the statements. The
Court was satisfied that Comet were aware that the statements were
false at the time they were made, based partly on the internal
emails which were circulated to Comet stores regarding the Currys
promotion. Currys argued that the whole purpose of the posters was
to lure customers to Comet at what was the busiest trading period
for both, and this was accepted by the Court. There was a
likelihood of actual damage.
For further information please contact Susan Barty
(telephone 0207 367 2542, email@example.com) or
Victoria Baker (telephone 0207 367 3451, firstname.lastname@example.org)