Liberty Fashion Wears Ltd v Primark Stores Ltd & Ors

Defamation proceedings may be struck out as an abuse of process where they no longer serve the legitimate purpose of protecting reputation. The court must exercise the jurisdiction cautiously and assess whether the likely vindication and damages justify the cost, court resources and other burdens of a trial. Relevant factors include the extent and location of publication, the claimant’s reputation in the jurisdiction, delay in complaining, the realistic prospect of meaningful relief, and the proportionality between litigation costs and likely recovery. The jurisdiction also applies where the claimant’s need to pursue the proceedings has disappeared. A claim against a defendant against whom no case is pleaded may likewise be struck out.

Liberty Fashion Wears Ltd, a Bangladeshi garment manufacturer, brought libel proceedings concerning statements published by Primark Stores Limited and the Accord on Fire and Building Safety in Bangladesh. The statements concerned the safety of Liberty’s factory premises and the termination of its trading relationship with Primark.

Liberty claimed general damages and an injunction, having abandoned an initially advanced special-damage claim. It failed to provide further particulars, its solicitors ceased to act, and it indicated shortly before the hearing that it wished to withdraw the claim. Primark applied to strike out the proceedings as an abuse of process. Primark UK also applied on the basis that no cause of action was pleaded against it.

1. Abuse of process. The court adopted the principles explained in Jameel v Dow Jones Inc [2005] EWCA Civ 75. The jurisdiction to strike out defamation proceedings because they do not serve the legitimate purpose of protecting reputation should be exercised only in clear cases, while maintaining the balance between freedom of expression and protection of reputation.
2. The court considered the extent of publication in England and Wales, the absence of evidence that anyone within the jurisdiction had read the words, Liberty’s failure to complain promptly, the absence of any pleaded reputation of substance in the jurisdiction, the lack of a properly particularised damages claim, and the substantial cost of investigating and trying the issues. The likely damages and vindication were plainly disproportionate to the costs and court resources required. The approach was consistent with Tamiz v Google Inc [2013] EWCA Civ 68 and the formulation discussed in Cammish v Hughes [2012] EWCA Civ 1655, derived from Schellenberg v BBC [2000] EMLR 296.
3. The claimant’s subsequent statement that it had decided to withdraw the claim provided an additional reason why the court’s process should not be used where the need for the proceedings had gone away. The claim against Primark was therefore an abuse of process and was struck out.
4. There was no pleaded case against Primark UK, which was dormant and had played no part in the publications. The claim against Primark UK was struck out on that independent basis.

Judgment was entered for Primark and Primark UK, with costs.