Trafigura and sub judice

The Guardian today is reporting that Carter-Ruck has written to the Speaker arguing that discussion of Trafigura and the injunction against the Guardian is sub judice. Here’s the Carter-Ruck letter.

First, what the letter says. To be fair to Carter-Ruck, most of the letter is not about sub judice at all, but merely an attempt to ensure the Speaker knows the full facts about what happened. That seems to me fair enough, and as a matter of interest, Carter-Ruck confirm my suspicions about what happened – there was no injunction specifically targeted at preventing Parliamentary reporting. Rather, Carter-Ruck took the view that a general order could be read as extending to Parliamentary reporting. We don’t know what was said in close detail of course, but this incident perhaps shows the importance of lawyers in these circumstances seeking instructions having advised on possible Streisand effects before adopting any potentially “Streisandable” position in correspondence with the other side. Also as a matter of interest, the letter at no point actually says it was Trafigura who applied for the injunction.

Carter-Ruck do say they think the matter is sub judice – but as they accept in their letter, and as I’ve written before, sub judice does not prevent debate, as the Speaker always has a discretion to allow debate on matters of national importance, as this undoubtedly is.

Here’s the Commons Library research note explaining sub judice in full.