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Posts Tagged ‘trafigura

Slaying the super-injunction dragon and dismantling the secret courts

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Today I was one of four bloggers giving evidence to the Parliamentary Select Committee on Privacy and injunctions. Also on the panel were David Allen Green (Jack of Kent / New Statesman), Paul Staines (Guido Fawkes) and Jamie East (Holy Moly).

Trafigura

My main focus in the discussion was the notorious Trafigura super-injunction which I helped to unravel back in 2009, by posting a “banned” Parliamentary Question on Twitter.

A super-injunction is a gagging order that both prohibits the publication of a specific piece of information, and forbids any mention of the gagging order’s existence.

Trafigura’s super-injunction banned any reference in the UK media to a leaked company memo known as the “Minton Report”. When,  in October 2009, the MP Paul Farrelly raised the issue in Parliament, Trafigura’s controversial lawyers, Carter Ruck, tried to prevent the press from reporting Farrelly’s question.

This had come at the end of a year that also saw a draconian libel ruling against the science writer Simon Singh.  The year before, Ben Goldacre and the Guardian had successfully defended a vexatious libel case by the AIDS-denialist quack Matthias Rath – yet the newspaper nonetheless lost hundreds of thousands of pounds in unrecovered costs. I myself had spent time fighting off an unfounded libel claim over Don’t Get Fooled Again, and had seen up close the chilling effect that such threats could have.

To me and many others who took action the same evening, Trafigura’s super-injunction felt like the last straw after a series of attacks on freedom of speech. The bid by Carter Ruck to ban the reporting of Parliament seemed like imperial over-reach by a “reputation management” company far too used to getting its way from pliant High Court judges. It seemed extraordinary that a judge sitting in an English court – on a handsome salary funded by ordinary taxpayers – might allow such an effort.

The situation also seemed absurd. The “banned” Parliamentary Question had been published by Parliament on its own website. The Minton report itself had been available on Wikileaks for over a month. Yet anyone who repeated the same information themselves could face prosecution for Contempt of Court.

Secret courts and freedom of speech

But the fundamental problem was the very idea of a secret court hearing to ban the free exchange of information. When a court case is heard in secret, the public has no way of checking whether the judgements made in their name are decent, honest, and fair. Because we don’t even know that the case is going on, we have no way of holding the court to account if – as is inevitable from time to time, given human nature – a judge makes a decision through corruption, cronyism or incompetence rather than through the fair application of the law. Public scrutiny is an essential safety valve in any democracy, and it seems extraordinary that our political class would seek to dispense with it so lightly. This is not a new idea.

Likewise, any constraint on freedom of expression risks being abused by those seeking to cover up evidence of corruption or incompetence, as we have seen time and again with UK libel law.

We might nonetheless accept this risk in certain narrow circumstances. We might agree that some categories of information should in principle, in all or most cases, be kept confidential. Some examples might be:

– Children’s medical records

– The name and address of a person under a witness protection programme

– Information likely to be prejudicial to a criminal trial

We might accept that the courts have a role in enforcing this.  But even in these cases, court decisions have to be open and public if we are to minimise the risk of abuse. And for a government official to extend such restrictions to information which merely has the potential to embarrass a large and powerful corporation seems, frankly, reckless.

“How does undermining the rule of law aid the public interest?”

Two years after Trafigura it feels as if progress has been made. There seems to be a general acceptance (other than from Carter Ruck and Trafigura, obviously) that Carter Ruck’s attempt to gag the reporting of Parliament was misguided. There is also a recognition that the current system of privacy and “confidence” injunctions is in a mess, and needs reform.

But it looks as if there’s a way to go yet. Prior to today’s meeting, the panelists were sent a list of somewhat loaded questions, including:

“Most of you have blogged about injunctions; some of you appeared to know or think you were breaching injunctions whilst you were blogging. What were your motivations for doing this? What made you think you wouldn’t be prosecuted?”

“Do you think that you are able to judge the appropriateness of an injunction when you haven’t heard the full case (compared with a judge who has)?”

“What is your definition of the public interest? How does undermining the rule of law aid the public interest?”

In one form or another, all of these questions came up during the session. I clarified to the Committee that when I chose to publish the Trafigura question I was by no means sure that I wouldn’t be prosecuted. I took the risk because I felt so strongly about the issue, and believe that many of the others who did the same thing were making a similar calculation.

The second question may seem reasonable at first glance. But the implication seems to be that when a judge passes a free speech restriction that appears completely unjust, or absurd, we simply have to nod deferentially and trust that they must have had lots of good reasons that we just don’t know about. This again, seems like a prescription for corruption and incompetence.

The last question was particularly interesting. While the Committee wanted to challenge us on our understanding of the “public interest”, it seemed to me that their definition of the “rule of law” was just as much open to question.

The United Nations defines the rule of law as:

a principle of governance in which all persons, institutions and entities… are accountable to laws that are publicly promulgated, equally enforced… and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law… avoidance of arbitrariness and procedural and legal transparency.

The International Bar Association, meanwhile, sees the rule of law as establishing “a transparent process accessible and equal to all”. The IBA spells out that “Confidence in the system of governance in any society cannot be maintained unless the process is open and transparent.

On this basis, it would seem that High Court judges who pass secret edicts restricting freedom of expression – and the Parliamentarians who allow them to continue – are doing far more to undermine the rule of law than the bloggers who circumvent them.

Rich man’s justice

Lord Gold and Gisela Stewart MP seemed concerned – if somewhat bemused – by my suggestion that I would quickly go bankrupt if I was ever dragged into a libel court over something that I’d written. Surely this was incredibly unfair to any potential litigants who might end up losing money by taking me to court? His Lordship noted, disdainfully, that it wasn’t worth anyone’s while suing me, was it?

It was difficult to know what to make of this point, so I thought I’d expand on it here: A typical UK libel case can end up costing upwards of £100,000 to defend. This is a figure far beyond the means of most ordinary people, including most bloggers, and that is why, for most of us, being sued for libel would entail bankruptcy.

The main reason that such cases are so expensive in this country – reportedly around 140 times the European average – is that the “reputation management” firms that bring them are willing and able to charge more for an hour’s work than many of us earn in a week.

This is, in other words, a situation that the legal profession, aided by a Parliament unprepared, so far, to reign in the activities of such firms, has actively created. So it seems odd for Parliamentarians – many of whom, like David Gold, are also lawyers themselves – to wring their hands when confronted with the consequences.

I’ve no idea what the Committee will have made of our testimony. It is, at least, encouraging that these issues are starting to be debated properly. But it is nonetheless disturbing to see such a blithe acceptance among our elected officials of this fundamentally undemocratic system. It’s difficult to see how the current mess will be sorted out, and public confidence restored, until we dismantle these secret courts.

Written by Richard Wilson

November 15, 2011 at 2:13 am

Independent breaks UK media silence over Trafigura trial in the Dutch courts

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With help from the newly-elected Green MP Caroline Lucas, The Independent  newspaper has taken a clear lead in the “Trafigura challenge” – the race to see which UK media outlet will be the first to report fully on the upcoming trial in the Dutch courts of the controversial oil company.

No UK newspaper or broadcaster has yet made any mention of  allegations made to Dutch prosecutors by Greenpeace – and widely featured in the Dutch media – that Trafigura and their law firm MacFarlanes sought to bribe witnesses in an earlier London court case. But the Independent has, by citing Caroline Lucas’ remarks, at least been able to reference the ongoing legal proceedings.

Under the Parliamentary Papers Act 1840, “correct copies” of any Parliamentary publication may freely be republished without fear of legal action, including, crucially, any action under the UK’s notoriously expensive and one-sided libel laws, which Trafigura has been ruthlessly exploiting.

In a message on Twitter last night, Caroline Lucas promised an “EDM [Early Day Motion] and PQs [Parliamentary Questions] to follow”, so with luck the UK press may soon have more opportunities to cover this story freely.

From The Independent

Caroline Lucas used her maiden speech to raise concerns that the British media are unable to fully report legal proceedings involving the commodities trading company Trafigura.

The Green MP pledged to use her new position in Parliament to raise the issue after legal claims were launched in the Netherlands against the company, which chartered the ship whose toxic sludge was illegally dumped in the Ivory Coast in 2006.

The Dutch-based oil trader caused outrage last year when a High Court injunction issued on its behalf had the effect of blocking coverage of parliamentary proceedings involving its activities. The “super-injunction”, obtained by the law firm Carter Ruck, was amended after it was accused of infringing the supremacy of Parliament by preventing the reporting of a question tabled by an MP. Politicians from all sides criticised the legal manoeuvre.

The law firm agreed to change the injunction and insisted there was no question that Trafigura had sought to gag the media from reporting parliamentary proceedings.

In her maiden speech to the House of Commons, Ms Lucas said she was still concerned that proceedings in foreign courts were not being reported in Britain. She said: “Last year honourable members from all sides of the House helped to shine a light on the actions of the international commodities trading group Trafigura, and the shipping of hazardous waste to the Ivory Coast.

“There was particular concern that the media in this country were being prevented from reporting the issues fully and fairly. This remains the case, for new legal actions concerning Trafigura have been launched in the Dutch courts and are being reported widely in other countries, but not here. And these are the kind of issues I would like to pursue.”

In unrelated proceedings, a court in Amsterdam is due to start hearing the trial next week of Trafigura for the alleged infringement of Dutch waste export laws relating to the Probo Koala, the chartered tanker whose waste was dumped at sites around the Ivorian city, Abidjan.

The company is accused along with the captain of the vessel, the municipal authorities in Amsterdam and a waste treatment company of breaking rules when the ship attempted to offload the waste in the Dutch city before it then departed for West Africa. The trial is expected to last five weeks.

Written by Richard Wilson

May 28, 2010 at 7:51 am

Trafigura goes on trial next week in Amsterdam – will the UK media dare to report it?

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The report they tried to ban…

The Anglo-Dutch oil company Trafigura goes on trial in the Netherlands on June 1st, over its role in the allegedly illegal exporting of toxic waste to the Ivory Coast. According to the Ivory Coast authorities, the dumping of this waste led to 15 deaths, with other reports putting the death toll at 17.

Trafigura is notorious for its willingness to use UK libel law – which is famously one-sided and prohibitively expensive for most defendants – to suppress critical coverage. As a result, while the Dutch, Norwegian and American media have reported the case freely, few UK newspapers will even cover it, let alone mention the alleged death toll (which Trafigura continues to dispute).

When Trafigura and their London-based law firm, MacFarlanes, were formally accused in the Dutch courts of bribing witnesses (a charge they deny), there was silence about it in the UK media.  According to MacFarlanes themselves, such behaviour “would have been illegal and it would certainly have constituted serious professional misconduct”. Under normal circumstances, the laying of such charges against a UK law firm would have been a major news story. The fact that it has gone unreported in Britain shows how much damage our libel laws have done to freedom of speech and public interest journalism.

When the trial itself begins on June 1st, it will be interesting to see if any UK media dare to cover it. This will be a key test of how much power Trafigura now wields over the British press – and how much courage our journalists and editors have in resisting this company’s sustained attack on press freedom.

Written by Richard Wilson

May 25, 2010 at 8:29 am

Trafigura and Macfarlanes deny bribing witnesses in toxic waste court case, threaten legal action against Dutch media

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Response to Volkskrant allegations, published on Scribd.com

Macfarlanes and Trafigura deny any involvement, whether direct or indirect, in what you describe as “bribery and influencing of witnesses”.

Not only would such conduct be grossly unethical, it would have been illegal and it would certainly have constituted serious professional misconduct by Macfarlanes. The suggestion that this firm or one of its partners would involve itself in such misconduct is as absurd as it is defamatory.

Furthermore, for reasons we touch on below, even if Macfarlanes or Trafigura had been willing to misconduct ourselves in this way (which we were not), it would have been completely illogical and counter-productive for us to have done so given the circumstances of these events.

We note that you acknowledge that these allegations are extremely serious. We trust, therefore, that if you consider yourself to be a responsible journalist, rather than pursuing a pre-meditated agenda against Trafigura, you will consider your position very carefully before publishing allegations about Macfarlanes which are indeed very serious, malicious, gravely defamatory, false and completely inconsistent with the previous course of conduct between the parties.

You state in your email that these are similar to allegations made last year. For the record, those allegations were also wholly without foundation. Indeed, they were formally withdrawn by the Claimants and their solicitors, Leigh Day & Co, in the Abidjan Personal Injury Group Litigation proceedings in September 2009.

Given your misapprehension of the true position and the fact that, regrettably, certain individuals have chosen to provide you with dishonest and malicious allegations, it is important that we address your questions.

It is equally important that you carefully consider our responses and weigh up how much reliance, if any, can be placed upon these false and malicious allegations.

In the event that you still decide to publish these allegations, we require you to ensure that you include our response to each allegation at the point in which it appears in the article.

You will appreciate that, given the seriousness and falsity of what you are seeking to allege, Macfarlanes and/or Trafigura will have no alternative but to commence legal proceedings without further notice if your story does not comply fully with the basic principles of truth, balanced reporting and responsible journalism.

From Radio Netherlands Worldwide:

Greenpeace accuses Trafigura

The environmental organisation accuses the multinational of having influenced witnesses.

In the Netherlands, Greenpeace has filed a complaint with the public prosecution against the multinational Trafigura, accusing the latter of having influenced witnesses and also of forgery.

According to the environmental organisation, a group of drivers reported to be Ivoirian would have agreed with Trafigura not to report being ill as a result of transporting toxic waste for the multinational.

A spokesman for Greenpeace has confirmed that information which had been disclosed by Dutch television and the center-left daily De Volkskrant.

According to the Ivorian justice, dumping of toxic waste in Abidjan in August 2006, by the cargo Probo Koala, chartered by Trafigura from Amsterdam, had killed 17 people and poisoned thousands.

Written by Richard Wilson

May 18, 2010 at 7:49 am

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Trafigura vindicated? 115-page “Reply” which the company says rebuts the BBC’s case

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Trafigura’s Reply to the BBC’s libel Defence(PDF)

A few weeks ago Wikileaks published the 40-page court document in which the BBC laid out its defence against Trafigura’s libel claim, following this Newsnight report from May last year.

Trafigura had always insisted that the available scientific evidence vindicated them of blame for any deaths or serious injuries following the August 2006 Probo Koala toxic waste incident, and in December the BBC controversially withdrew their claims and agreed to pay damages. Yet Trafigura have never published the evidence which they say vindicates them, despite repeated requests.

Following the publication of the BBC document by Wikileaks, the blogger Calum Carr again contacted Trafigura to request their side of the story, but again to no avail.

Calum and I have now obtained this document ourselves. Given today’s very promising news about the libel reform campaign, we felt that this was a good moment to put the information out into the public domain, so that people can form their own view on this contentious issue.

Obtaining an electronic copy of this document has been an interesting process in itself. To do this, I had to:

1. Go to the High Court in person

2. Make a formal request for a copy of the document (giving full personal details including my home address)

3. Wait several days

4. Phone the High Court to see if the copy was ready

5. Visit the High Court again in person

6. Pay a not-insignificant photocopying fee

7. Pick up the paper copy of the document

8. Take the copy to a specialist document scanning company to get it turned into a PDF

9. Pay another fee

10. Wait another few days, before receiving the PDF via email.

This is apparently standard procedure for getting hold of key UK court documents. One would almost have thought that the legal authorities did not actually want the British public to have ready access to documents which are, at least in theory, available to all of us by right…

We might compare the above process to the mechanism involved in, say, accessing the text of a Parliamentary Question or a Select Committee report, eg:

1. Visit the Parliament website

2. Type in a relevant search term

2. Download the information (for free).

For all the concerns we might have about the current workings of the Parliament, its processes currently seem a whole lot more open transparent than those of the judiciary. Apart from anything else, the requirement that one has to visit the High Court in person to access a public document seems inherently discriminatory to anyone living a significant distance from London.

If and when we get some real progress on libel reform, it seems to me that opening up the judiciary to at least the same levels of scrutiny we have for Parliament could be an important next step.

Written by Richard Wilson

March 23, 2010 at 8:00 pm

New statement from Amnesty: “There were 15 reported deaths”

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The day after the BBC backed down in the face of legal threats from Trafigura over their claim that the company’s waste caused deaths…

From Amnesty International

In August 2006, toxic waste was brought to Abidjan on board the ship Probo Koala, which had been chartered by oil-trading company, Trafigura.

This waste was then dumped in various locations around the city, causing a human rights tragedy. More than 100,000 people sought medical attention for a range of health problems and there were 15 reported deaths.

On 23 September 2009, the High Court of England and Wales approved a $45 million settlement between nearly 30,000 victims of the toxic waste dumping and Trafigura.

Written by Richard Wilson

December 19, 2009 at 9:21 am

UK’s dysfunctional libel system strikes again? Newsnight feature on Trafigura disappears from BBC website

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UPDATE – The censored Newsnight feature on Trafigura may have disappeared from the BBC website, but it’s now all over Youtube…

The BBC lawyers may have caved, but you can still defy Trafigura – click here to find out how!

See also: Democracy under attack – Carter-Ruck persuades Commons Speaker that courts *can* ban the reporting of Parliament

In May, the BBC ran a feature on the oil company Trafigura, alleging “dirty tricks” over the dumping of toxic waste in the ivory coast. Shortly afterwards, Trafigura announced that they were sueing the BBC for libel.

The case has received very little media attention – a sign, perhaps, of the ongoing chill that Trafigura is managing to cast over the UK media – but it was mentioned again in this Guardian piece last month.

Until very recently, the Newsnight feature was freely available on the BBC’s website – but now it seems to have disappeared. It’s currently still available via Google cache, which indicates that it was on the site as late as lunchtime yesterday. Could of course just be a technical problem but it does look somewhat odd…

UPDATE 11/12/09 – The story has now been missing from the website for more than 24 hours – it’s starting to look more and more likely that  the piece has been spiked, and that the BBC – that most British of institutions – may now have become the latest victim of our country’s “rogue state” libel laws. In an ironic twist, it seems that the BBC’s lawyers chose international Human Rights Day as the moment to cave in to this attack on freedom of expression.

Written by Richard Wilson

December 10, 2009 at 3:37 pm

Posted in Censorship

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