Before I turn to the questions I want to say something about the basic facts of the case which have become entirely lost in the furore about “gags”, superinjunctions and parliamentary privilege.
The injunction concerned a draft report which had been stolen from Trafigura’s offices and then passed to the Guardian – “the Minton report”. The stolen document had been commissioned by Trafigura’s Solicitors, and was prepared by John Minton of an environmental consultancy at their request, in the immediate aftermath of the incident in the Ivory Coast. It was also a report based not on any factual investigation or analysis but based on hypothetical ideas as to what may have happened to the slops from the Probo Koala in the Ivory Coast. So, the “report” was in fact a confidential, legally privileged document which had been stolen and illegally passed to the Guardian. The report had also been quickly and authoritatively superseded by a Dutch government analysis of the actual slops themselves, and there had therefore been no need for Trafigura or anyone else to rely on it any further.
But clearly The Guardian didn’t think the true facts would be as juicy for its readers as simply stating (entirely disingenuously) that the report had been “suppressed”. Better still, contributing even further to its alleged importance, the Times referred to it as “Lord Minton’s” report.
When the Guardian contacted Trafigura’s lawyers indicating that they intended to publish an article concerning the Minton report, Trafigura applied for an injunction to prevent this breach of confidence and the Guardian did not oppose it. They consented to it. No doubt the Guardian were alive to the fact that the public interest in preventing the publication of a stolen, confidential, draft, privileged and superseded document far outweighed the public interest in knowing of the contents of a hypothesis which had long been overtaken by the facts. It was the “super” bit of the Injunction that the Guardian did not like, which prevented the Guardian from reporting the fact that Trafigura had obtained an injunction against them.
Bearing these facts in mind let’s look at the questions:
First, given that there was a “super-injunction” in place, how on earth did Paul Farrelly MP, find out about it in order for him to table a question about it in the House?
Well, Mr Farrelly was asked in the House how he came to learn about the injunction. His reply was that as a former journalist he would not be divulging his sources. A former journalist? Oh yes, formerly the City Editor of the Observer. Isn’t that the sister paper of the Guardian? This gave me an idea. Why not ask the Guardian? And so I did.
“Why did you leak the injunction to Paul Farrelly?” I asked, (over a glass of wine, not just a cold call you understand). “What else could we have done? Litigation is just so expensive” came the reply.
A second question is why was the Guardian worried about reporting a question tabled in the House? The Guardian’s first report on the subject was a rather hysterical front page headline that they had been “gagged” from even repeating the Parliamentary question. But surely media reports of Parliamentary proceedings are privileged?
In order to answer to that, one needs to know that under the Parliamentary Papers Act 1840, a newspaper and others are free to publish extracts from Hansard provided such extracts are published “bona fide and without malice”. So why was the Guardian concerned about publishing? We know, because they have said so, that their own in house legal team and their QC advised them they couldn’t be at all confident that publication of the question would not be a contempt of Court. Look in vain for the story “Guardian gagged by its own legal advisers from reporting Parliament”.
What might have been mala fide (malicious) about the Guardian publishing the question? There were no doubt two concerns within Editorial. The first is, given that there was an injunction in place against the Guardian, it might well have been a contempt of court and thus “mala fide” to report the question. The second concern might well have been that in planting the Parliamentary question in the first place, in breach of the injunction, the Guardian would not be found to be acting “bona fide”.
Carter-Ruck’s view, that it might be a contempt for the Guardian to publish, (which was shared by the Guardian’s legal team) was treated with derision by uninformed Members of the House. A minister told the House that Carter-Ruck were wrong to claim super-injunctions applied to the reporting of Parliamentary proceedings. On 6 December 2009 the Times (not the Guardian) reported that legal advisers to the Speaker of the House of Commons confirmed that Carter-Ruck’s view of the law was correct.
In referring to the Trafigura injunction in the House, it seems clear that Mr Farrelly breached the sub judice rule of the House, resolution CJ 2001-02 which provides that “subject to the discretion of the Chair, cases in which proceedings are active in the UK courts shall not be referred to in any motion, debate or question.” Never mind, the Guardian gave plenty of coverage (over 200 articles now, wasn’t it) to a story generated by their own contempt of Court and Mr Farrelly was named “Inquisitor of the year” for his work in the Parliamentarian of the Year awards organised by the Spectator magazine. Ho hum.
Mr Farrelly says he referred to the injunction in his question because the story was one of considerable public interest and the Guardian was being prevented from publishing it. But hang on a minute. A third question: why did a judge grant an injunction (let alone a super-injunction) preventing the Guardian publishing a story that was so obviously in the public interest?
Guardian readers were told that factors in the judicial decision making process which tilted the decision against them were that the Judge was a “duty Judge”, a “vacation judge” (for which read: so he clearly doesn’t know what he is doing), “until last year, a Crown Court judge” (so he knows nothing about civil procedure or the law of confidence then) and a former Recorder of Manchester. Or as David Leigh revealed in a debate on Trafigura “He [the Judge] was from the north”, which presumably was meant to add unsophisticated to ignorant, whilst at the same time not identifying which part of the north, lest someone mention that it was only in 1959 that the Manchester Guardian dropped “Manchester” from its title (and thus became sophisticated itself?). In case you are wondering, it seems a Judge only earns the sobriquet “unelected” if he grants an injunction involving a tabloid newspaper.
The Judge gave his reasons for the “super” part of the injunction.
“There also seems to me to be substance in the point that if the Guardian publish that named claimants have applied for an injunction against them, it is something that could be seen by some members of the public as indicating an attempt by the claimants improperly to muzzle the press, indeed even as being part of an anti-media campaign on the claimants’ part. Obviously views which might be formed by the publication of such material would depend upon the precise words in which the matter was reported. The claimants are in the further difficulty that they do not know in exactly what terms the fact that an injunction has been applied for and undertakings given would be reported. In truth, the claimants appear to me, on the information presently available, to be doing no more than taking legitimate action to protect legitimate rights, and there is no reason why they should be subject to what would in fact be misinformed possible false interpretations of their stance were the matter to be reported” .
How prescient of this duty vacation judge from the north. How soon the papers claimed that Trafigura had obtained an injunction to prevent anyone finding out about the incident on the Ivory Coast. And of course, the injunction was temporary, and was due to last only another seven days, until the point could by fully argued. But it never was. At the next short hearing, the Guardian asked for more time to gather their evidence and again undertook not to publish the contents of Lord, er, Mr Minton’s report. They did not argue that the “super” part of the injunction should fall away, but no criticism has been levied by the Guardian against the Judge who dealt with that application. Perhaps he was not from the north.
The Guardian did not argue the point because they did not need to – they had other ideas. Why not leak it to the former City editor of the Observer? He can raise it in the House, and we can say we were gagged from reporting Parliament by Carter-Ruck, never mind that our lawyers gave us the same advice. Or that it was never the intention of the injunction to prevent the reporting of Parliament, but that this was an unintended consequence that had never been considered by either party at the time the injunction was sought and consented to by the newspaper.
Of course, it is all great fun for newspapers launching attacks on Judges and law firms but isn’t the legacy of the Guardian’s and Paul Farrelly’s actions that other newspapers and Parliamentarians will follow their lead and subvert the rule of law? As the former Lord Justice, Stephen Sedley pointed out: –
‘The naming of injunction claimants is on a different plane: because it disrupts the historic equilibrium between the judiciary and the legislature. The media may present themselves as amused spectators, but it is they who have provoked and exploited the breakdown of an element in the democracy they themselves inhabit”’
For this, the Guardian and Mr Farrelly must take their share of responsibility. It is they who showed the tabloids (and John Hemming MP, and Lord Stoneham) the way to breach privacy injunctions, and there is no appeal from their actions.
Nigel Tait is a partner in the firm Carter-Ruck which acted for Trafigura in its case against the Guardian