Lidl wins High Court action over price survey commissioned by Aldi

Supermarket chain Lidl Ireland has won a High Court action that arose over what it claims was a flawed 2018 Aldi-commissioned price survey that put Lidl in second place.

Lidl claimed the methodology used in the survey, conducted by Grant Thornton, was flawed, and made a formal complaint to Chartered Accountants Ireland (CAI), the regulatory body for chartered accountants.

An independent committee of the CAI had held that Grant Thornton had no case to answer.

Lidl claimed that the committee’s decision was legally flawed and ought to be quashed.

Decision

In a judgment Mr Justice Cian Ferriter agreed that the decision challenged should be set aside and that the complaint should be remitted back for a fresh reconsideration by the committee.

The High Court heard that Aldi commissioned accountants Grant Thornton to carry out the survey in February 2018.

The results, which were published in the media, said on average Aldi was the cheaper retailer.

Lidl claimed the methodology of the survey was flawed because it did not, in several instances, compare like-for-like products.

Lidl also claimed the Aldi prices were not “in-store” prices but came from a master list.

The survey compared an average shopping basket containing 62 items in Aldi, Lidl, Tesco, SuperValu and Dunne’s Stores.

Lidl, represented by Feichin McDonagh SC with Keith Spencer, claimed the survey results had called into question the independence, objectivity and professional integrity of Grant Thornton and it made a formal complaint to the CAI, the regulatory body for chartered accountants.

The CAI got a conduct committee to examine the complaint. Grant Thornton denied the claims and opposed the complaint.

Weaknesses

The committee concluded that despite weaknesses in the methodology, the survey did not appear to be flawed to an extent that it would amount to poor professional performance on the part of Grant Thornton.

An independent review of the committee’s decision found there was evidence the price survey had not compared like with like, it was claimed.

Following the review, the matter was sent back to the CAI committee for further consideration.

However, in 2020 the committee decided that Grant Thornton had no case to answer.

Lidl brought High Court judicial review proceedings against both the CAI and the Independent Review Committee of the CAI, aimed at setting aside the committee’s decision.

The action was opposed on grounds including that the decision challenged was not amenable to judicial review, that there was no breach of fair procedures, that Lidl lacked the standing to bring the challenge, and that there was a failure to give reasons for the decision.

Review

Grant Thornton was a notice party to the proceedings.

In his judgment, the judge said that he was of the view the matter was amenable to judicial review.

Lidl, he said, has a right to make a complaint to the CAI, and have that complaint investigated and the decision of the conduct committee independently reviewed.

The judge added that he was also satisfied that the committee had breached its requirement to give reasons as to why it held that Grant Thornton had no case to answer.

However, the court did not accept that the CAI and the committee had acted in breach of fair procedures as alleged by Lidl.

The judge said he was quashing the decision and remitted the matter back to the CAI for a fresh consideration for an assessment by a differently constituted independent review committee.