Practice

Claimant Bangladeshi company supplying garments to major western retailers, including first defendant – Following fatal collapse of factory in Bangladesh, first defendant raising concern about safety of factories in Bangladesh

The first defendant (Primark Stores) was the UK trading arm of a retailer, Primark. The third defendant (Primark UK) was part of the same group, but a non-trading company. The claimant (Liberty) was a Bangladeshi company, which, until 2013, supplied garments to a number of major western retailers, including Primark Stores.

In April 2013, a factory building in Bangladesh collapsed and over a thousand people were killed. In response, Primark Stores and other retailers with manufacturing links to Bangladesh formed an accord on fire and building safety in Bangladesh (the accord). The accord obliged its signatories to cease doing business with suppliers who refused to co-operate with the regime. Primark Stores was concerned about the safety of one of Liberty’s factories.

On 12 June 2013, Primark Stores wrote to Liberty cancelling all outstanding contracts and making clear that it would not conduct business with Liberty while workers were working in a building that it considered unsafe. On 17 June, Primark Stores issued a press release which outlined its position. The press release was posted on its website.

On 2 October, the accord published a statement in the New Nation newspaper in Bangladesh concerning Liberty. That statement was also published on the accord’s website. The accord later recommended a full withdrawal and cessation of business with Liberty by accord retailer signatories. Liberty brought a claim against the defendants for special damages of just under £13m. No claim was made in the letter before action for general damages or for an injunction.

Liberty abandoned the special damages claim without explanation and claimed general damages and an injunction. The particulars of claim relied on the press release on Primark Stores’ website and on the publication by the accord of its statement, for which Primark Stores was said to have been responsible. There was an apparent allegation of liability for republication by third parties of the words complained of.

Liberty’s claim was limited to publication within the English jurisdiction. It made no complaint of publication of accord statement in the New Nation newspaper in Bangladesh. A report showed that there had been about 151 page views of the relevant page on Primark Stores’ website and about 152 views from within the UK of the site which hosted accord’s statement. Primark Stores and Primark Ltd applied for the claim to be struck out.

The issue for consideration was whether the claim ought, in all the circumstances, to be struck out.

The application would be allowed.

The jurisdiction to strike out defamation proceedings as an abuse of process, was well established. Publication within the jurisdiction of the words complained of in the Primark Stores press release and the accord statement had been small. Liberty had not suggested that it knew of any individual within the jurisdiction who read the words complained of and it had not made complaint of publication of the accord statement in the New Nation newspaper in Bangladesh, where its reputation had chiefly to have resided.

There was a huge disproportion between the likely time and cost of litigating the claim, and the likely outcome in terms of the damages which Liberty would, if successful, be awarded. The court was entitled to take into account the fact that Liberty had first advanced what, on the face of it, was a greatly inflated and implausible special damage claim, and had then abandoned that claim without explanation, replacing it instead with a claim for general damages and an injunction, neither of which remedy had been sought or even referred to in the letter before action. It was difficult, in the circumstances, to place much weight on the claim for an injunction, even though the words complained of remained.

There was no realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources. As far as Primark UK was concerned, there was no pleaded case against it in the particulars of claim. It was a dormant company which played no part in the publication of the words complained of. On any view, the claim had to be struck out (see [54],[55], [57] of the judgment).

Jameel v Dow Jones & Co Inc [2005] All ER (D) 43 (Feb) applied; Tamiz v Google Inc [2013] All ER (D) 163 (Feb) applied; Cammish v Hughes [2012] All ER (D) 105 (Dec) considered.

Liberty did not appear and was not represented; Ian Helme (instructed by Herbert Smith Freehills LLP) for Primark and Primark UK.