Liberty Fashion Wears Ltd v Primark Stores Ltd & Ors

On 28 January 2015 I struck out the Claimant’s claim on the application of the First and Third Defendants, with costs. These are my reasons for making that order.

The application was made by the UK trading arm of the retailer Primark, Primark Stores Limited (‘Primark’), which is the first defendant, and by Primark (UK) Limited (‘Primark UK’), the third defendant, which is a non-trading company and has been dormant since 1998. Both companies are part of the Associated British Foods plc group. The claimant, Liberty Fashion Wears Ltd (‘Liberty’), was informed of Primark UK’s dormant status in August 2014, but the claim was nonetheless served on it. However, no claim was advanced against Primark UK in the Particulars of Claim. Invitations to discontinue the claim against Primark UK have not been productive.

Appearances notwithstanding, the second defendant has no connection with the Primark group, and was not represented on the hearing of the application. No claim was advanced against it in the Particulars of Claim, and no notice of discontinuance has been filed.

The application is for an order that the claim be struck out and judgment entered for Primark and Primark UK on the basis that the claimant's claim for libel is an abuse of process, and on the basis that no cause of action is disclosed as against Primark UK.

There is an alternative application for security for costs. I need say no more about that.

Liberty is a Bangladeshi company. Until 2013, it was a supplier of garments to a number of major Western retailers, including Primark. It is not clear whether or not it is still a going concern. There was a suggestion in the letter of claim that as at July 2014 it had ceased production.

I take this account of the background to the litigation from the first witness statement of Neil Blake, a senior associate solicitor with Herbert Smith Freehills LLP (‘HSF’). No evidence has been put in by Liberty. I am conscious that some of Mr Blake’s evidence might have been in dispute had Liberty put in evidence of its own, but most of his account is amply supported by documentary evidence.

The starting point is the disastrous collapse in April 2013 of a factory building in Bangladesh called the Rana Plaza. Over a thousand people were killed.

In response to that disaster, Primark and a number of other retailers with manufacturing links to Bangladesh formed the Accord on Fire and Building Safety in Bangladesh (‘the Accord’), which provided for a regime of inspections and (if necessary) remedial works with a view to ensuring the safety of factory buildings in the Bangladeshi garment industry. The Accord obliged its signatories to cease doing business with suppliers who refused to co-operate with the regime.

Given that it was bound to take some time for the Accord to become fully operational, some of the signatories immediately launched into a series of factory inspections. One of them, Tesco, appointed a company called Medway Consultancy services (MCS) for that purpose. One of the factories that MCS inspected belonged to Liberty. Following two inspections, on 4 June 2013 MCS produced a preliminary report which concluded that one of Liberty’s factory buildings, Building 2, was only just able to support its own weight, and that in certain respects it was more than 80% above its safe loading capacity. In short, it was potentially very unsafe.

Tesco shared the report with Primark and the conclusions of the report were notified to Liberty. On 8 June 2013 Primark demanded that Building 2 be evacuated immediately, given the potential dangers to workers. According to Mr Blake, Liberty refused. It arranged instead for its own inspection to take place. This was carried out by the Bangladesh Garment Manufacturers and Exporters Association (‘BGMEA’), which reported on 10 June that it had inspected a Liberty building (it is unclear which building is referred to, but it appears from the context to have been Building 2), had observed no structural distress, and reported that from a visual inspection the building was safe. However, it did not appear that any calculations of the building’s load bearing capacity had been carried out, or that MCS’ calculations were challenged.

Primark did not consider that the BGMEA survey was sufficient to dispel the concerns raised by MCS, and on 10 June repeated its insistence that Building 2 be evacuated.

On the same day, Mr Mozammel Huq, Liberty’s chairman and managing director, wrote to Tesco to say that he accepted the advice of MCS and would undertake the recommended remedial work. Yet according to Mr Blake’s evidence, on the following day, 11 June, Mr Huq refused to agree to a plan for remedying the defects in the building put to him during a meeting attended by representatives of Primark, Tesco and MCS. In particular, he would not agree to the provision in the plan for the immediate evacuation of Liberty employees, at least without assurances of financial support from those present, notwithstanding that Primark and Tesco undertook to assist Liberty in relocating work from Building 2 to other buildings to ensure continuity of production. Mr Huq’s stance was unacceptable to Primark.

So it was that on 12 June 2013 Primark 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 was unsafe. Tesco did the same.

On 17 June 2013 Primark issued a press release which outlined its position. The press release was posted on its website, and is the first publication complained of in these proceedings. It read as follows:

“Statement on Liberty Fashions

Following the Rana Plaza disaster, Primark announced on 5 June it had begun its own inspections of buildings housing its suppliers in Bangladesh. This programme is in advance of the company's intention to implement the Accord on Building and Fire Safety.

As part of this programme, Primark has been advised that Liberty Fashion Wear Ltd (sewing unit) is housed in an unsafe building. Primark immediately asked the owners of Liberty Fashion to evacuate the building, and offered support on this basis. To date, Liberty has failed to evacuate the premises and is refusing to do so.

Following further discussions with Liberty, trade unions, the ILO and the BGMEA, Primark was left with no alternative but to terminate its relationship with this supplier with immediate effect. The company bought a relatively small amount of clothing from this supplier, but termination is a step that the company is always reluctant to take, preferring to support suppliers willing to make improvements to working conditions.

The company has informed the Ethical Trading Initiative in London of its decision.

The company remains extremely concerned about the safety of workers in this building.”

No objection was made by Liberty to the press release until 28 July 2014.

On about 21 June 2013 Liberty evacuated its workers from Building 2. At about the same time, it commissioned a report on the structural soundness of the building from the Bangladesh University of Engineering and Technology (‘BUET’), which in its report dated 29 June concluded that parts of the structure of Building 2 were inadequate and that appropriate strengthening and retrofitting measures were required to make it safe. The report recommended that loadings should be reduced until the necessary remedial measures were taken, and that the building should only be used ‘cautiously’ for current operations.

Tesco and Primark were unable to accept the ‘cautious’ use of Building 2, given the risk that structural failure might occur without warning.

Even though Primark had ceased to do business with Liberty, it seems that it (and other customers of Liberty) continued to take steps to assist Liberty with a variety of proposals designed to ensure that it remained operational, including appointing and paying for specialist consultants and providing contingency funding, on condition that Liberty engaged with the process of making the building safe. Mr Blake’s evidence is that Liberty was largely uncooperative, and that there were indications that it was in a precarious financial position. That information was derived from a draft report dated 13 September 2013 by Robin Grant FCA, who was engaged on behalf of a number of Liberty customers. It showed not only that, as would have been expected, the closure of Building 2 had caused a fall in production, with consequent cash flow difficulties, but also that Liberty had debts of nearly $21 million, monthly interest charges of $150,000 and serious issues of corporate governance, financial controls and accounting practices to be addressed.

Primark and other companies which had dealt with Liberty had requested that it provide a full remedial plan for Building 2 by 15 September 2013. It did produce a plan on or around 16 September but, to Primark’s alarm, suggested that the building was safe to use even though the repairs had not been completed. At about the same time, Liberty was both asking for the help of Accord members to pay workers’ wages, and warning of likely employee unrest, and publishing an advertisement in the 23 September issue of the Bangladeshi Daily Star newspaper which attacked Tesco and MCS, the building surveyors, and demanded huge compensation for the losses caused by being forced to close Building 2.

In response to those attacks, on 2 October 2013 the Accord published a statement in the New Nation newspaper in Bangladesh. On 14 October 2013 the same statement was uploaded to the Accord website. The publication of the statement on the Accord website is the second publication complained of. It reads as follows:

“Liberty Fashion Wears Ltd

The Accord on Fire and Building Safety was set up to ensure real and sustainable improvements to working conditions in the Bangladesh garment industry are implemented effectively. As part of the programme, we are inspecting factories covered by The Accord in order to identify safety and fire hazards that pose immediate risks to workers.

At Liberty Fashion Wears Ltd, Tesco, Debenhams, Primark and Li & Fung reacted following a structural inspection of the factory and found that Unit 2 (the main sewing unit) was in danger of collapse and workers were in grave danger. The factory agreed to close Unit 2 on 9th June 2013 and brands mentioned along with K-Mart (Australia), Target (Australia) and Carrefour gave substantial financial support to Liberty Fashion Wears Ltd to ensure workers were paid for July and EID bonuses. By 20th September 2013, work on Unit 2 had not yet been undertaken suggesting that the Company is unwilling to take any steps or present any plan to repair the building, despite several months of encouragement.

The Accord fully supports its members in their dealings with the factory and believes that they have acted responsibly throughout this case, prioritising the safety of workers and offering financial and expert support to factory management to help them address the issues. It is regrettable that factory management have not been willing to address the issues they face despite the support. We believe it would be dangerous to allow workers to return to work in Unit 2. The Accord will be working with the brands involved, relevant authorities including the BGMEA and local trade unions to ensure the best possible outcome for the workers in the factory, including the payment of all outstanding wages, overtime payments, benefits and severance pay.

Signatory companies shall make reasonable efforts to ensure that any workers whose employment is terminated as a result of any loss of orders at a factory are offered employment with safe suppliers, if necessary by actively working with other suppliers to provide hiring preferences to those workers.”

Liberty did not complain of publication of the Accord statement in the New Nation newspaper. No complaint was made to Primark about the Accord website publication until 28 July 2014.

According to Mr Blake, no further progress was made by Liberty with plans to make the building safe, and in early November 2013, the Accord recommended a full withdrawal and cessation of business by Accord retailer signatories.

On 28 July 2014 solicitors acting for Liberty sent Primark UK a lengthy letter before action, enclosing a copy claim form issued on 13 June 2014.

The letter complained of the Primark press release of 17 June 2013, and of the publication of the Accord statement on the Accord website (but not in the New Nation newspaper in Bangladesh). It also complained of a number of allegedly defamatory statements said to have been published by Primark and republished in newspapers or on newspaper websites. It did not attempt to set out the defamatory meanings of which Liberty complained.

The claim advanced in the letter before action consisted of a claim for special damages of just under £13 million, together with what were described as exemplary and punitive damages. The special damage claim was remarkably unparticularised, but it consisted of seven categories, each of which stated a figure for loss in Bangladesh Taka (BDT), said to have been caused ‘as a result of Primark’s defamatory statements and breaches’:

Given that (as explained below) no special damage claim was pleaded in the particulars of claim, and none has been forthcoming since, it is unnecessary to consider it further, but Mr Blake’s suggestion in evidence that any financial loss was caused not by the words complained of but by Liberty’s own actions, has some cogency. It is not immediately obvious how, for instance, losses caused by the cessation of production in Building 2, or the cost of wages and maintenance, could be said to have been caused by the words complained of, as opposed to legitimate, and non-actionable, pressure on Liberty to take steps to protect its workers.

No claim was made in the letter before action for general damages or for an injunction.

On 19 September 2014 Primark responded in detail through their solicitors, HSF. The response was a firm and carefully reasoned rejection of the Liberty claim.

On 13 October 2014, four months from issue of the claim form, the claimant served particulars of claim, relying on publication of the 17 June press release on Primark's website (primark.com) and on the publication by the Accord of its statement, for which Primark was said to have been responsible, and on what appeared at least arguably to be an allegation of liability for republication by third parties of the words complained of. The meanings pleaded were (as far as the Primark press release was concerned) that Liberty had in flagrant disregard for the safety of its workers refused to evacuate them from a building which it knew to be unsafe and where they were in mortal danger, and (in the case of the Accord statement) that in flagrant disregard for the safety of its workers Liberty first put them in grave peril by placing them in a factory unit in danger of collapse and then, despite being given substantial financial support, proved itself unwilling to take any steps or present any plan to repair the building, even though it would be dangerous to allow workers to return to it.

There was now no special damage claim, the prayer seeking only general damages and an injunction, neither of which had been sought in the letter before action.

However, by an application notice dated 13 October, Liberty sought an extension of time for filing and serving particulars of its claim to special damages. The witness statement in support of the application candidly revealed that documentary evidence in support of Liberty’s alleged right to special damages had been sought from Liberty but had not yet been provided. In the light of the focus on special damage in the letter before action, that was surprising.

Liberty’s application was compromised on terms that it would have until 27 October 2014 to file and serve particulars of its claim to special damages. It was also agreed that the deadline for filing and serving the defence would be extended until 24 November 2014, so that Primark would be able to provide a consolidated pleading dealing both with the existing particulars of claim and with any further particulars of special damage.

In the event, no further particulars were filed or served by Liberty on 27 October. No explanation was given for that failure, nor did Liberty seek any retrospective extension of the deadline. It appears that Liberty has done nothing further to suggest any intention of serving particulars of claim to special damage.

Indeed, on 3 December 2014 Liberty's solicitors informed Primark that they had ceased to act in the proceedings. No new legal advisers have been appointed by Liberty, which has not provided Primark with a new address for service. It has, to Primark’s knowledge, no place of business or residence within this jurisdiction.

The present application was issued on 21 November 2014, and was served together with a draft order and Mr Blake's first statement on Liberty’s then solicitors. It is reasonable to assume that the solicitors will have informed the claimant of the nature of the application, because at that stage they were still on the record. The date of the application was fixed on 4 December by Primark’s counsel's clerk, but no representative of Liberty attended. Nonetheless Primark has, in my judgment, done everything possible, by all means available to it, to inform Liberty of the hearing date. One of the means employed, using what Mr Blake in his second witness statement refers to as the ‘third email address’, seems likely to have been successful in informing Liberty of the date and timing of the hearing.

On 27 January 2015 HSF received an email from Mr Mozammel Huq, the chairman and managing director of Liberty, in which Mr Huq said that the decision had been made to withdraw the claim against Primark. He stated that in the absence of his solicitor it was not possible for him to continue the claim in the United Kingdom, and that after the closure of his business he had become unwell and had been unable to come to this country to prosecute the claim. He went on to explain that he had no funds to continue the claim, and asked HSF ‘to direct us the procedure to withdraw the claim earliest possible’. Mr Blake responded by informing Mr Huq that in view of the pending hearing, the proposal was to place his email and Mr Blake’s reply before the court, and to invite the court to strike out the claim and enter judgment for Mr Blake’s clients.

Liberty’s claim is limited to publication within the jurisdiction. Liberty is, as I have said, a Bangladeshi corporation, engaged in the manufacture of garments in Bangladesh. There is no suggestion in the particulars of claim or elsewhere that it has any, or any substantial, reputation in this jurisdiction, although it has had customers in this country, including Tesco and Debenhams, as well as Primark.

The particulars of claim allege ‘enormous’ publication of the words complained of in this jurisdiction. Among the matters relied upon by the claimant is the fact that the 17 June press release is available on Primark’s website, primark.com, and that the Accord statement is available on the Accord website, bangladeshaccord.org.

Mr Blake addresses these claims for very substantial publication in his first witness statement, and makes a number of points.

Firstly, he says, the statements complained of are stored amongst numerous other press releases, in reverse chronological order. He plausibly suggests that in all the circumstances it is highly unlikely that they are the subject of any continuing substantial publication.

More importantly, there has been technical analysis of the extent of publication of the 17 June press release. Two Google Analytics reports were obtained, covering the period 13 June 2013 to 11 November 2014.

According to Mr Blake, the first report comprises data on the number of page views of the webpage URL which (as pleaded at paragraph 4 of the Particulars of Claim) displayed the 17 June press release. The press release was not in fact displayed on that URL until about 6 May 2014, and indeed the Primark website which now hosts the press release, Primark.com, was not set up at all until October 2013. However, the report shows a total number of 151 page views of the relevant web page. The report does not show the number of page views within England and Wales, although it is a reasonable inference that there will have been considerably fewer than 151. Moreover, it appears that there were no page views at all until an unspecified date between some point after April and July 2014, after which there was a surge of activity up to and after October 2014. The lack of activity until after April 2014 appears to confirm that the press release was not in fact displayed on the pleaded web page until a date on or around 6 May 2014.

According to Mr Blake’s evidence, the second report provides data on the number of page views of a webpage URL for a separate website, the Primark-Bangladesh.com website, within the period 13 June 2013 to 11 November 2014. The press release was hosted on this URL before it was put up on the Primark.com website to which I have already referred. The second report shows a total number of 70 page views of the web page hosting the 17 June press release, only 21 of which appeared to have been views from users within this jurisdiction. That said, there is no pleaded complaint in respect of publication via this URL. In the case of this web page, there was no activity until September/October 2013, when there was a spike of activity, after which there was a more substantial surge of renewed activity in the period March/April to October 2014.

Mr Blake makes the point that it is apparent from the data analysis in both reports that a substantial proportion of the page views coincides with the preparation of the claim form and its issue on 13 June 2014, with the letter of claim dated 28 July 2014, with the Primark response of 19 September 2014, and with the present application. Mr Blake invites the inference, which in my judgment is compelling, that a significant number of the page views were made by the parties themselves and their lawyers in connection with these proceedings. Indeed, given that the publication of the 17 June press release via the Primark.com URL, that being the only publication in respect of which there is a pleaded complaint, cannot have occurred until approximately 6 May 2014 or thereafter, it appears that there may have been no substantial publication to anyone other than the parties and their lawyers via that URL.

As regards the extent of publication of the Accord statement, a Google Analytics report has been obtained for the period 14 October 2013 to 12 November 2014. This report contains page view data relating to the webpage URL hosting the text of the Accord statement, which in turn contains a link to the URL containing an embedded PDF of the statement in respect of which Liberty complains at paragraph 7 of the particulars of claim. It appears that page views of the PDF of the statement were not tracked. Given that the route to the PDF lies through the URL hosting the text of the statement, it would be reasonable to suppose that few readers would have accessed the PDF separately, although Mr Blake concedes that it might be possible for a web user to find the PDF by a web search. Be that as it may, the report shows a total number of 749 page views of the URL which hosts the text of the statement, 152 of which appear to amount to publication within this jurisdiction.

Mr Blake notes that given that the words comprising the Accord statement were first published in the Bangladeshi newspaper the New Nation on 2 October 2013, it is a reasonable inference that any publication in this jurisdiction of the same words on the Accord website is likely to have been very substantially less than publication in Bangladesh, where Liberty is based and presumably has a reputation to defend. As I have said, no complaint was made by Liberty in connection with the publication in New Nation.

It should be noted that the particulars of claim refer, in support of the contention that publication was ‘enormous’, to a number of other media publications which are said to have reported the ‘stance’ taken by Primark and the Accord. It is unclear whether the intention is to allege that the publications (referred to at paragraphs 5.4 and 8.4 of the particulars of claim) amounted to re-publications of or were in some other way caused by the publication of the 17 June press release and the Accord statement.

If so, there are serious difficulties with that contention. One is that the 17 June press release was not available at the URL complained of at paragraph 4 of the particulars of claim until about 6 May 2014, so could not have caused the publications pleaded at paragraph 5.4, which predate May 2014. The same difficulty arises with an article pleaded at paragraph 8.4.1 of the particulars of claim, which was published before the date of online publication of the Accord statement. There is a further objection to the case on re-publication, if that is what it is. It appears from the evidence of Mr Blake, who exhibits the relevant publications, that they do not in fact repeat the words complained of. It seems to me that Mr Blake is right to characterise them as part of broader news coverage of events in Bangladesh following the Rana Plaza disaster, the creation of the Accord, and the steps taken by members of the Accord to improve workers’ safety in the garment industry.

The jurisdiction invoked by Primark is now well established. The two developments which had made the courts readier to entertain submissions that pursuit of a libel action might be an abuse of process were explained by the Court of Appeal in Jameel v Dow Jones Inc [2005] EWCA Civ 75, [2005] QB 946 at [55]:

“The first is the introduction of the new Civil Procedure Rules. Pursuit of the overriding objective requires an approach by the court to litigation that is both more flexible and more proactive. The second is the coming into effect of the Human Rights Act 1998. Section 6 requires the court, as a public authority, to administer the law in a manner which is compatible with Convention rights, in so far as it is possible to do so. Keeping a proper balance between the article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant's reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged.”

The Court of Appeal explained the jurisdiction in these terms in Tamiz v Google Inc [2013] EWCA Civ 68, [2013] 1 WLR 2151 at [49], referring to Jameel v Dow Jones Inc:

“In the Jameel (Yousef) case the Court of Appeal upheld an application to strike out as an abuse of process defamation proceedings against the publisher of a US newspaper in respect of an article posted on an Internet website in the USA which was available to subscribers in England but had been the subject of minimal publication within this jurisdiction. The court considered that the principles relevant to a strikeout application overlapped with those relevant to an application to set aside permission to serve out of the jurisdiction. It was in the latter context that the question whether “a real and substantial tort has been committed within the jurisdiction” had been developed, but the court considered that the question whether a substantial tort had been committed in the jurisdiction was also relevant to an application to strike out as abuse of process. It held that keeping a proper balance between the article 10 right of freedom of expression and the protection of individual reputation required the court to bring to a stop, as an abuse of process, defamation proceedings that were not serving the legitimate purpose of protecting the claimant's reputation, which included compensating the claimant only if that reputation had been unlawfully damaged. The court went on to consider whether, on the facts of the case before it, vindication of the claimant's reputation justified the continuance of the action. It concluded [2005] QB 946, paras 69–70:

69.

If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The costs of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick.

70.

If we were considering an application to set aside permission to serve these proceedings out of the jurisdiction we would allow that application on the basis that the five publications that had taken place in this jurisdiction did not, individually or collectively, amount to a real and substantial tort. Jurisdiction is no longer in issue, but, subject to the effect of the claim for an injunction that we have yet to consider, we consider for precisely the same reason that it would not be right to permit this action to proceed. It would be an abuse of the process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where so little is now seen to be at stake.”

In Cammish v Hughes [2012] EWCA Civ 1655, [2013] EMLR 13, the court described as ‘illuminating and convenient’ Eady J’s formulation in the ground-breaking decision of Schellenberg v BBC [2000] EMLR 296. Eady J had held that, in deciding whether defamation proceedings should be struck out as an abuse of the process of the court, the relevant question was whether ‘the game was worth the candle’, and could not accept ‘that there (was) any 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’.

There is no doubt that the jurisdiction should only be exercised in clear cases.

The following factors are particularly relevant in this case to the exercise of the jurisdiction.

There is, in short, a huge disproportion between the likely time and cost of litigating this claim, and the likely outcome in terms of the damages which Liberty would, if successful, be awarded. In my judgment the court is entitled to take into account also the fact that Liberty first advanced what on the face of it was a greatly inflated and implausible special damage claim, and 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 is difficult, in the circumstances, to place much weight on the claim for an injunction, even though the words complained of remain (albeit far from prominently) on the respective websites. To borrow Eady J’s words, I cannot see that there is any 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.

Recent developments support that conclusion. Mr Blake’s third witness statement exhibits an email to HSF dated 27 January 2015 from Mr Mozammel Huq, the chairman and managing director of Liberty. In that email, Mr Huq says this:

“Because we have decided to withdraw the claim against your client. In the absence of our solicitor it is not possible for me to continue the claim in UK. After closure of our business I became very sick and unable to come UK to continue the claim as well as we have no fund to continue the claim in UK. In this regard you are requested to direct us the procedure to withdraw the claim earliest possible.”

Mr Blake responded that in his clients’ view the quickest and most cost-efficient way to bring the proceedings to an end was to strike them out, and that with that in view he would put the correspondence before the court. That was done, and Mr Helme submitted that in the circumstances, even if Liberty’s proceedings had not been an abuse before, ‘the process of the court should not be used in a case where the need has gone away’ (Cammish v Hughes at [56]). I agree.

As far as Primark UK is concerned, there is no pleaded case against it in the particulars of claim. Liberty appears to accept that, as Mr Blake’s evidence shows, it is a dormant company which played no part in the publication of the words complained of. On any view, the claim against it must be struck out.