Trafigura: The Sequel

I commented on the Trafigura affair in my earlier article Trafigura: Oil and law don't mix.

According to BBC reports, Trafigura through their solicitors Carter Ruck have released the Guardian from the injunction precluding them reporting on the preliminary report into the disposal of oil residues around the Ivory Coast which had apparently been procured by Trafigura from a technical adviser. A number of copies of the report (the "Minton report") are now on the web. Now that the preliminary report is open to the public, I can see that I was wrong to refer to disposal at sea. The residues referred to in the report and about which a dispute about responsibility arises were disposed of to coastal landfill sites around the Ivory Coast.

I have also now dug out a copy of the Parliamentary question against which the High Court issued a secret gagging injunction. It was thus:

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.

Possibly one could just about take the view that releasing the Minton report might be prejudicial to the legal action they are thought to have brought for defamation against a broadcaster (although I doubt it - see further below), but it is astonishing that a judge of the High Court thought this innocuous PQ was such a threat to the judicial process that he or she needed to gag it, and gag it secretly. Probably not only astonishing, but also an outrage, given the public interest in openness in the administration of justice.

As I mentioned in my earlier article, the sub-judice principle rightly makes it a contempt of court to publish material in active proceedings likely to prejudice the fair disposal of those proceedings, and the principle is most commonly thought of in terms of criminal proceedings, although it also applies, as in the Trafigura case, to civil proceedings. The two main areas of prejudice which might arise from newspaper reports is prejudice to witnesses and prejudice to jurors. Given that the Minton report is a technical scientific report which would be the subject of expert evidence at any trial, and expert witnesses are first professionals and secondly would read the Minton report themselves in preparing their own evidence, it is unlikely that release of the report now could affect witnesses in the defamation action. Normally civil cases do not involve juries, which is why the sub-judice principle bears less heavily on them in comparison to criminal cases, but defamation proceedings are one of the two remaining classes of civil trial in which a jury may be requested to determine matters of fact. However, given that the Minton report would be compellable in civil proceedings (Trafigura could be required to produce it to the defendants and thus to the jury), any obvious substantial prejudice would be difficult to find.

But how could the PQ, which only names but does not extract the Minton report, be prejudicial? Possibly it might make it easier to find an illicit copy on the web by means of a Google search, but a knowledgeable searcher could equally well have searched on "Trafigura Ivory Coast oil report", and found it were an illicit copy available. It is ridiculous.

There are worrying indications that the High Court issues secret gagging injunctions without reasonable inquiry. Incidentally, I note that the BBC report says that "the legal firm Carter Ruck has written to the Guardian saying the paper should regard itself as 'released forthwith' from any reporting restrictions", but this is an order of the court not an order of Carter Ruck. This reduces the court to acting as mere agents of any applicant firm of solicitors who happen to produce an affidavit saying they fear prejudice.

If we had a written constitution then we would more clearly know that secret gagging orders should only be issued where there is such a compelling and exceptional case in the interests of justice to limit public knowledge of the case as to outweigh the public interest in the open and transparent administration of justice. If the courts have got into the habit of issuing secret gagging orders like confetti, they should step back, realise that there are constitutional issues at stake, and stop. If legislative intervention is necessary to secure this, Parliament should get to work on it. There is nothing, after all, party political in this.

Trafigura: Oil and law don't mix

The Trafigura affair, creditably taken up by the Guardian newspaper and raised in Prime Minister's questions yesterday, is interesting. It involves what has been referred to as "secret injunctions" or "super injunctions". A secret injunction is similar to a normal injunction, namely an order of the court issued to a person requiring that person to do or not to do something, but it is coupled with a further injunction requiring that person not to divulge (except to the person's legal adviser) that the injunction has been issued and what it relates to.

The background

Trafigura are an oil-trading company and are the subject of proceedings by affected people in West Africa concerning an alleged releasing of oil sludge residues at sea, a matter which it must be said is still to be proven one way or the other, but is at least a matter of public knowledge. The English dimension arises because Trafigura also appear to have brought defamation proceedings in England against a broadcasting enterprise which has referred to the affair. Trafigura appear to have persuaded a judge in the High Court (the identity of whom also appears to be a secret) that a secret injunction should be issued in the case preventing reporting of the defamation proceedings on sub-judice grounds. I say "appear" here and further below because the secrecy requirements make it difficult to know exactly what is going on.

Not unreasonably, there was some concern about the court-sanctioned gagging going on in this case. Paul Farrelly MP tabled a Parliamentary question about it to Ministers in order to draw attention to this, and probably also to circumvent the gagging in the hope that newspapers would report on the Parliamentary question. In response Trafigura went a step further, entirely logical if you accept the premise that secret court proceedings are acceptable in a democracy, of obtaining a second secret injunction, this time preventing reporting by the Guardian newspaper and possibly others (as it is secret we don't know) of the Parliamentary question.

Sub-judice

One of the issues lying behind the injunction is therefore that of sub-judice. The sub-judice principle, of common law origin but now found in statute (most recently in the Contempt of Court Act 1981), makes it a contempt of court to publish material in active proceedings likely to prejudice the fair disposal of those proceedings. The principle is most commonly thought of in terms of criminal proceedings, although it also applies, as in the case in question, to civil proceedings. Of itself, the sub-judice rule is necessary in any society that wishes trials to be conducted fairly.

However two additional elements have entered into the Trafigura affair. The first is the increasing readiness of the judiciary to issue secret injunctions preventing mention being made of legal proceedings and the parties to them, particularly in defamation and privacy cases. It may well be that there are instances where mere mention of a defamation case may aggravate the defamation, or may prejudice the proceedings, but they must be few in number and it is difficult to see how that could apply in this case. If the Trafigura matter highlights this growing trend and prompts legislative intervention in the way the courts conduct the practice, that may not be a bad thing. There is a matter of public interest at stake here, namely the principle that all legal proceedings should be as open as is practicable and consistent with justice, to which it appears too little weight may be being given on occasions by the High Court when dealing with privacy and defamation cases. One of the weapons of the police state is the secret trial.

Parliamentary privilege

The other aspect is that of Parliamentary privilege. Despite suggestions to the contrary, the issue by the court of the injunction, whilst appearing to be ill-judged, did not breach Parliamentary privilege. Article 9 of the Bill of Rights 1689 provides that "the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament". This prevents courts or others involving themselves in proceedings in Parliament, and gives absolute immunity to things said and done in Parliament. However, the question that sometimes arises is what are "proceedings in Parliament" protected by article 9. It has been held for example that the article does not include most correspondence between members and Ministers on constituency matters, and in the well-known case of Stockdale v Hansard (1839) 9 Ad & El 1 it was held that whilst papers published internally within Parliament relating to Parliamentary business are protected, publication of them outside Parliament by order of the House is not. (The Stockdale case in fact concerned publication by order of the House of a report into Newgate prison which alleged the circulation there of pornographic material.)

In response to the Stockdale decision, Parliament duly enacted the Parliamentary Papers Act 1840. This confers absolute privilege in any proceedings, including defamation and contempt of court, whether criminal or civil, in respect of the publication or copying of any document or paper published by order of the House, and qualified privilege (that is, privilege in the absence of malice or other improper motive) in respect of the publication of any fair summary or extract of the document or paper.

The making of a Parliamentary question to a Minister, including a written one (the vast majority of Parliamentary questions are written), and the making of a reply by a Minister, are undoubtedly proceedings in Parliament for the purposes of article 9. However, it is also clear from the Stockdale case that the further publication of the Parliamentary question outside Parliament is not. Likewise, unless published by order of the House as one of the papers of the House, it is not protected by the 1840 Act either, and it appears that although all Parliamentary questions are published on-line on Parliament's website, there is no formal order of the House that that should be done - I think, although I stand to be corrected if I am wrong on that point of fact.

Assuming there is no such general order of the House for publication of Parliamentary questions - and it would be interesting to see if the judge actually inquired into this - the issuing of the injunction against publication of the particular Parliamentary question relevant to the Trafigura case was within the legal competence of the judge in question. What one must question however is whether in the exercise of that power he or she was right to take the view that the making of the secret injunction was justified on the merits, given the public interest in openness in legal proceedings.