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Trafigura update: Jack Straw to examine use of ‘super injunctions’

The justice secretary Jack Straw will examine the use of so-called ‘super injunctions’ following yesterday’s Trafigura-Guardian row, the Prime Minister, Gordon Brown told MPs in Parliament today.

As reported by PA Mediapoint on Press Gazette, Gordon Brown called secret injunctions, which not only banned reporting of a story but also the existence of the ban itself, an ‘unfortunate’ area of UK law.

Since yesterday’s events which saw Carter-Ruck abandon an attempt to stop the Guardian publishing a tabled question for Parliament, Peter Bottomley, a Conservative MP, told the house he was reporting Carter-Ruck, the law firm acting on behalf of Trafigura, to the Law Society, on the grounds that no lawyers should be able to inhibit the reporting of Parliament.

Carter-Ruck has disputed the Guardian’s account of events published on Monday evening, in a statement available via its website [Full contents at this  PDF link].

“There has never been any question of Trafigura applying for an injunction that had as its purpose the prevention of publication of any matter arising in Parliament.  No such application has ever been made,” it stated.

“Nevertheless, as formulated (and as The Guardian apparently accepts) the Order would indeed have prevented The Guardian from reporting on the  Parliamentary Question which had been tabled for later this week,” the statement said.

The Guardian stated in an editorial today that they were told not to report the question, in line with an existing order. “When we became aware that the existence of this order had been mentioned in a parliamentary question we sought to vary the terms of the injunction. We were advised by Carter-Ruck that publication would place us in contempt of court,” stated the Guardian.

Private Eye was the first publication to publish Paul Farrelly’s question, the fortnightly magazine proclaimed in a story on its site.

“The MP’s [Paul Farrelly] intention to test this conspiracy of silence [secret ‘super-injunctions’] by asking questions about it using parliamentary privilege was revealed in Private Eye 1246, which went on sale on 29 September – a full two weeks before the Twittersphere caught up with the story.”

“There is an emerging culture of anonymity in which justice is not even seen to be done, and that is an unfortunate, rather dangerous trend,” said Ian Hislop, the magazine’s editor.

“I thought Private Eye’s job was to expose this. That is why I decided to publish the MP’s questions as the first item in the parliamentary column in yesterday’s [Tuesday] edition of Private Eye,” he said.

“The questions mentioned a recent court case in which we were defendants and concerned a matter on which I had given evidence to a parliamentary select committee. It seemed to me impossible that, in 2009, there could be any reason why we would not be allowed to publish privileged material available from the House of Commons. I saw the questions on the parliament website and I could not think of any judicial ruling which could overrule parliament, so I went ahead. That’s what we’re for.”

But the UK injunction on the report referenced in Paul Farrelly’s question remains.

“The issuing by the courts of so-called ‘super-injunctions’ is rightly controversial and  a matter of growing concern,” MP Paul Farrelly said in a statement yesterday.

“That is why, using parliamentary privilege, I tabled these questions to Jack Straw at the Ministry of Justice as a matter of urgency.”

“The practice offends the time-honoured ‘rule against prior restraint’, which safeguards freedom of expression in this country. It also fails to protect whistleblowers, acting in the public interest. The huge legal bills involved in fighting cases, too, have a chilling effect on legitimate investigative journalism.”

Guardian editor Alan Rusbridger on Trafigura’s ‘own goal’

Following an extraordinary attempt by lawyers Carter-Ruck to stop the Guardian reporting a parliamentary question, due to an existing ‘super-injunction,’ this came from the Guardian’s editor, Alan Rusbridger last night:

“Full circle… How the #Guardian is reporting #Trafigura own goal tonight http://tinyurl.com/yl4quac”

“That media organisations were unable to report a parliamentary question was due to a so-called ‘super-injunction’ obtained by the notorious law firm Carter-Ruck on behalf of Trafigura, a large London-based trading company. A ‘super-injunction’ is one which not only prevents any publication, but which is itself secret. Search in vain for the case in the court lists of the high court in London: it appears only as ‘RJW and SJW v The Guardian’. Under its terms, the Guardian was prevented from publishing a certain document: it was also banned from revealing that Trafigura had been to court to obtain an injunction. When we became aware that the existence of this order had been mentioned in a parliamentary question we sought to vary the terms of the injunction. We were advised by Carter-Ruck that publication would place us in contempt of court.”

What do you think about so-called ‘super-injunctions’? Let us know: via @journalismnews, in the comments, or via judith or laura [at] journalism.co.uk.

BBC Newsnight to report how large companies use media law to restrict information

The BBC has now run a longer story on the attempt to gag the Guardian from reporting a parliamentary question by MP Paul Farrelly about UK oil company Trafigura [Parliament.uk].

The BBC does not quote or detail the question itself, but states: ‘the paper’s  [Guardian] website said the question from Paul Farrelly MP ‘was related to Trafigura toxic waste scandal’.

“Newsnight will report on this case and the prevalence of media laws being used by large companies to restrict information on Tuesday October 13 2009 at 10.30pm on BBC Two,” the BBC said.

Full story at this link…

Update: The BBC report now reproduces the question in full.

Carter-Ruck abandons attempt to gag Guardian on Trafigura question

As reported by the Guardian’s editor-in-chief Alan Rusbridger (via Twitter), lawyers Carter-Ruck will no longer try to prevent his publication reporting MP Paul Farrelly’s parliamentary question about Trafigura.

Here we are then, taken from the Parliament website, the question … in question:



N Paul Farrelly (Newcastle-under-Lyme):

To ask the Secretary of State for Justice, what assessment he has made of the effectiveness of legislation to protect:

(a) whistleblowers and (b) press freedom following the injunctions obtained in the High Court by

(i) Barclays and Freshfields solicitors on 19 March 2009 on the publication of internal Barclays reports documenting alleged tax avoidance schemes and

(ii) Trafigura and Carter Ruck solicitors on 11 September 2009 on the publication of the Minton report on the alleged dumping of toxic waste in the Ivory Coast, commissioned by Trafigura.


via Order Book Part 2.

The journalist and NGO collaboration to expose Ivory Coast toxic waste dump

It can now be reported that legal firm Carter-Ruck tried to prevent the Guardian from reporting MP Paul Farrelly’s question about UK oil trader Trafigura in Parliament, but it will no longer pursue its attempt.

Given this news, and that Trafigura and Carter-Ruck are trending topics on Twitter this morning, it seems timely to publish this commentary on events from last month.

[NB: Farrelly’s question concerns Trafigura and its solicitors, Carter-Ruck]

“Getting investigative journalists to co-operate is notoriously as difficult as herding cats,” said David Leigh, head of investigations at British newspaper, the Guardian, in a comment piece last month.

But a disregard for secretive journalistic conventions, led to his most recent large exposé: the events surrounding what many call one of the gravest pollution disasters in recent history.

Last month, the Guardian splashed with the story that British oil company Trafigura had offered a £30 million ($49,056,000) payout to 31,000 victims of toxic dumping in West Africa – £1,000 ($1,635) each.

The dumping itself –  400 tonnes of toxic waste in the Ivory Coast by an oil tanker, the Probo Koala, in 2006 – was already public, but less clear was what damage had been caused and whether Trafigura knew of its hazardous effects.

The Guardian reported the £100 million ($163,560,000) legal battle behind what it called a ‘cover-up exercise’ by Trafigura and published emails, allegedly showing that Trafigura ‘was fully aware that its waste dumped in Ivory Coast was so toxic that it was banned in Europe’.

(Trafigura response further detailed below; it denies liability and a cover-up.)

Global silence
Just the day before the Guardian published, Trafigura tried to get a gagging order on Dutch paper Volkskrant and Norwegian TV.

It had already attempted to force the Guardian to delete earlier news articles, and was successful in making the Times of London print a correction. A libel case was launched against the BBC’s flagship news programme, Newsnight.

Collaborative effort
Journalists from the UK, Norway, the Netherlands and Estonia joined with a lawyer from the firm Leigh Day, which had been attempting to sue Trafigura on behalf of 31,000 inhabitants of Abidjan, and the charities Greenpeace and Amnesty International in order to piece the story together.

The emails, which provided the bulk of the evidence, had been collected from various countries with the aid of the NGOs and then shared between the reporters, despite the legal threat looming large.

They decided they should go public when the United Nations published a scheduled report on the Ivory Coast disaster.

But Trafigura nearly put pay to the big scoop: it announced the compensation settlement to the West African victims, even though it continued – and continues – to deny liability.

Regardless, the Guardian and then Newsnight went public.

The links:

Global reaction
Despite the legal risk, allegations and emails were published without relying on Wikileaks. But the whistleblowing organisation did offer its own leaked document and praised the Guardian for its ‘solid work,’ via its Twitter feed (@wikileaks).

Greenpeace, a leading environmental campaigning organization, wants to see Trafigura prosecuted for manslaughter and grievous bodily harm, and cites documents which it says demonstrate the waste’s high toxicity.

In September, Trafigura’s £30-million pay-out was approved in the UK High court. But, as Katy Dowell of theLaywer.com pointed out, it’s not a straightforward victory for the claimants: Trafigura has never accepted liability. The victims only got a third of their overall claim and legal fees are yet to be discussed, she added.

Trafigura still claims that the firm representing the claimants, Leigh Day & Co, ‘had failed to demonstrate any link between the waste deposited and any deaths, miscarriages, still births or other serious injuries’. It also denies any allegations of a ‘cover-up’. In its statement on September 19 it claimed the company which actually dumped the ‘slops’, Compagnie Tommy, did so without authority. The settlement ‘vindicates’ Trafigura, the company claimed.

UK libel laws threat to democracy
It is another example that questions the place of UK libel laws in a functioning democracy. Vital facts about a devastating pollution disaster nearly went completely unreported, as a result of the huge costs involved in going to court.

Campaigning environmental journalist at the Guardian, George Monbiot commented that it’s not surprising that most of the British media wouldn’t touch it with a bargepole: “The reason isn’t hard to divine: Trafigura has been throwing legal threats around like confetti.”

He threw in a frightening thought:

“How many Trafiguras have got away with it by frightening critics away with Britain’s libel laws?

“These iniquitous, outdated laws are a threat to democracy, a threat to society, a threat to the environment and public health. They must be repealed.”

Susan Perry commented on the case for the MinnPost. Originally from the US, she was glad to be leaving the UK:

“It wasn’t only the story itself that stunned me. I was also astonished to hear the BBC journalists describe how the reporting of the story had been essentially suppressed in Europe’s mainstream media until last week. Only by banding together did the BBC and other media outlets dare to go public with the information they’d uncovered.”

‘Firms like Carter-Ruck have become expert at pressing certain legal buttons,’ says David Leigh

The Guardian could go to court today to challenge a ban by lawyers Carter-Ruck on reporting Parliament, its editor-in-chief Alan Rusbridger has reported on Twitter.

Last night, as explained at this link, the Guardian reported that it has been prevented from reporting parliamentary proceedings, specifically a question submitted by an MP.

The Guardian was prevented from identifying the MP who has asked the question, what the question is, which minister might answer it, or where the question is to be found. But bloggers and Twitterers quickly started spreading information about the case and speculating on what the question might be.

Stephen Fry and a silent flashmob organiser are among those to express support via Twitter.

The Liberal Democrat leader Nick Clegg wrote that he is very interested and ‘concerned’ about the Guardian story. “The @LibDems are planning to take action on this,” he said in a tweet.

“I find it difficult to believe that the courts will try to gag free speech and the reporting of parliament in such a casual way,” the Guardian’s head of investigations, David Leigh, told Journalism.co.uk.

“I’m afraid they do it because firms like Carter-Ruck have become expert at pressing certain legal buttons. The failure of some  judges to understand the nature of the foundations of democracy in this country is the underlying problem.”

Mainstream media outlets, except the Spectator, have yet to report the gag. The First Post today carries a profile of Carter-Ruck’s late founder, Peter Carter-Ruck: ‘The man who invented the London libel industry’.

As noted by InTheNews.co.uk, #trafigura was a top trending topic on Twitter this morning, with Carter-RUCK, #carterruck and Trafigura all trending highly as well.

Last month the Guardian reported how UK firm Trafigura had tried to cover up a ‘pollution disaster’ in the Ivory Coast. Writing for the title, George Monbiot also commented on the paper’s lengthy legal battle with Trafigura.

Guardian gagged from reporting parliament

Last night the Guardian reported that it has been prevented from reporting parliamentary proceedings ‘on legal grounds which appear to call into question privileges guaranteeing free speech established under the 1688 Bill of Rights’.

“Today’s published Commons order papers contain a question to be answered by a minister later this week. The Guardian is prevented from identifying the MP who has asked the question, what the question is, which minister might answer it, or where the question is to be found.”

Guardian story at this link…

The only information reported:

“The only fact the Guardian can report is that the case involves the London solicitors Carter-Ruck, who specialise in suing the media for clients, who include individuals or global corporations.”

But the Spectator, thought to be the first mainstream title to provide more information, has reproduced what it believes is the question being referred to.

Guido was one of, if not the first, bloggers to speculate which question was being prevented from being reported.

Hashtags #gagcarterruck and #guardiangag have now been introduced into the Twittersphere, with a Silent Flashmob planned to take place outside Carter-Ruck’s offices on Thursday, October 15 at 1pm.

More to follow from Journalism.co.uk.

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Carter Ruck release: Mail on Sunday apologises to MP over Dale story

Tom Watson MP has published a release from law firm Carter Ruck in full on his blog, after false allegations were made against the politician in a Mail on Sunday article by political blogger Iain Dale.

Dale’s piece alleged that Watson had been copied into ‘smear’ emails sent by former Downing Street aide Damian McBride.

Associated Newspapers, owners of the MoS, has accepted the allegations were untrue, apologised to Watson and paid him ‘substantial damages’ and costs.

Full release at this link…