As you may well already know, Trafigura have abandoned their attempts to injunct publication of the “Minton report” – as the Guardian reported last night. I’m sorry to keep saying I told you so but the Guardian story confirms my view that the legal basis for the injunction was that the report was legally privileged, because commissioned by solicitors from experts for use in litigation.
Anyway, here now is that report, made by the scientific consultants Minton Treharne and Davies. I’ve not been following the Trafigura case beyond the legal issues that have arisen this week, so it wouldn’t be obvious to me even if this were some sort of “smoking gun” – but it doesn’t look like it. All it seems to do is confirm that the chemical compounds that were dumped in Ivory Coast are capable of producing the effects victims say they suffered – and death. I think perhaps the only reason this report is now being read by so many is because of the injunction against publication.
I’m not saying Carter-Ruck were wrong to seek an injunction – legal privilege is an important privacy right that helps guarantee fair trials, though the importance of the principle is often overlooked by people who are rightly anxious for freedom of information and of expression, even though they’d be sympathetic to principled claims to privacy in other contexts, like the secrecy of medical, social security and tax records and (as many people argue) confidentiality of DNA profiles. It may have been wrong to seek a “superinjunction” – without knowing the details it’s difficult to know, but as things stand I can’t think why it was necessary to restrain publication of the fact and terms of the injunction. On this I think questions do need to be asked, if and when they appropriately can be, as to why the court did this. Paul Farrelly was right to raise it in Parliament.
What I think must have been wrong was Carter-Ruck’s reading of the injunction as extending to Parliamentary reporting. Without being able to refer to the terms of the order (it’s not yet clear that we’re released from the ban on discussing it) I can’t tell how reasonable or unreasonable that reading was, purely as a matter of construing words, but surely any such limitation in an injunction must be set out in express terms. To argue it can be implied in an order must be wrong in principle – a sort of lawyering that sees only trees and no wood.
Of course it’s difficult to criticise them, not knowing the full detail of what passed between the parties; but surely rather than seeing the Guardian as the ones needing to go to court for a variation to have Parliamentary reporting excluded, Carter-Ruck should have seen themselves as the ones having to go to court to argue for and, if they could, justify a variation to cover reporting of the Farrelly question. If that approach is taken by the entire legal profession in future there will be much less risk that a judge’s order will unintentionally restrict free expression to this extreme and unjustifiable degree – or be wrongly characterised by anyone as doing so.
Of course this affair is a resounding tactical victory for the Guardian, not just against Trafigura and Carter-Ruck, but in its entire campaign against superinjunctions. I’m afraid Carter-Ruck scored an embarrassing own goal.
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