Written evidence submitted by the Guardian
News and Media Ltd
I write in response to the "supplementary
written evidence" supplied to you recently by Carter-Ruck
Solicitors, in the form of a letter which has now been made available
on the Parliamentary website with the reference "PS 143".
In that letter, the writer (Andrew Stephenson)
refers to a brief conversation he had with you after the "Freedom
of Expression Round Table" held by the JCHR in November 2009.
I was present during the latter part of that conversation (between
you, Mr Stephenson and Alasdair Pepper, also of Carter-Ruck),
during which the possible provision to you by Carter-Ruck of some
further information was mentioned. I specifically requested of
Mr Stephenson that, if any further information was to be presented
in relation to this matter, this should be considered first in
consultation with me, so that, hopefully, something could be submitted
jointly by Carter-Ruck and Guardian News & Media ("GNM").
I understood my request to have been received positively. I regret,
therefore, that a response should have been submitted by Carter-Ruck
alone, with no prior consultation with me. The appearance of the
letter on your website was the first I knew of it.
I hope it will assist you and your Committee
to have a short response on behalf of GNM on matters arising from
the Carter-Ruck letter.
The Order made on 11 September 2009
At the outset, it is worth recording what the
relevant part of the order made by Maddison J said (emphasis added):
"UPON it appearing to the Court (i) that
the action is one likely to attract publicity, (ii) that publicity
revealing the identity of the Applicants is likely unfairly to
damage the interests of the Applicants, and (iii) that accordingly
publication of details revealing the Applicant's identity ought
to be prohibited AND pursuant to the Contempt of Court Act 1981,
section 11, the CPR Rules 5.4 and 39.2(4), and the inherent jurisdiction
of the Court until the 18 September 2009 or other order:
(a) The application hearing to which this
Order relates was held in private and the publication of all
information relating to these proceedings or of information describing
them or the intended claim is expressly prohibited.
(b) There be substituted for all purposes
in this action in place of references to the Applicants by name,
and whether orally or in writing, references to the letters "RJW"
and "SJW".
(c) To the extent necessary to conceal the
identity of the Applicants, any other references, whether to persons
or to places or otherwise, be adjusted appropriately, with leave
to the parties to apply in default of agreement as to the manner
of such adjustment."
That part of the Order was made by the judge
in precisely the form that had been requested by Carter-Ruck,
on behalf of their clients ("Trafigura"). It was, plainly,
draconian in its effect. It was vigorously opposed by GNM at the
hearing on 11 September 2009, on the grounds that there was no
necessity for any such order being made in the circumstances of
the case.
It was and remains the position of GNM that
this part of the Order should never have been made. The High Court
has recently underlined the importance of open justice, making
plain that orders restricting reporting should be made only where
"necessary": see G & G v Wikimedia Foundation
Inc [2009] EWHC 3148 (QB) (Tugendhat J). This underlines the
point made by the Court of Appeal in Browne v Associated Newspapers
Ltd [2008] QB 103 at [3], that anonymity was a course to be
avoided unless required by justice. The Order was to be the subject
of further argument at another hearing. At that time, the parties
anticipated that a further hearing was likely to take place within
a week. In the event, no further hearing had in fact taken place
by the time the events of 12 October occurred.
The wording of this part of the Order was, as
I have said, submitted by Carter-Ruck. As you will appreciate,
it does not provide, in relation to the existence of the proceedings
or the identity of the claimants, any "public domain"
or other exemption that would have expressly permitted reporting
of Parliament. I should point out that, by contrast, there was
such an exemption in the undertaking given by GNM in relation
to the content of the Minton Report. It was in order to protect
the contents and existence of this Report that Trafigura applied
for the interim injunction on 11 September. The temporary undertaking,
given by GNM pending the further hearing, prevented the publication
of information (or purported information) derived "solely"
from the Minton Report. It was contemplated by the parties, at
the time, that this wording would permit the reporting of matters
in the public domain, including reports of courts or Parliament.
It is clear, therefore, that in relation to the existence of the
Minton Report and its contents, GNM would have been able to report
proceedings in Parliament.
The Parliamentary Question
I do not need to set out Mr Farrelly's Parliamentary
Question ("PQ") in this letter. Suffice to say that
it was tabled on 12 October and referred both to the existence
of the proceedings against GNM and to the identity of the claimants
(Trafigura).
Reporting the PQ: the effect of the order
There is no doubt that Maddison J's order of
11 September 2009 had the effect of preventing GNM from reporting
Mr Farrelly's PQ—that is, it had the effect of preventing
the reporting of Parliament. The contents of the PQ fell squarely
within the wording of the order. There was no exemption for "public
domain" or the reporting of Parliament.
The order had been made against GNM and "persons
unknown" (suspected of having "leaked" the Minton
Report). However, as you may know, Carter-Ruck had served that
order on third parties—we do not know upon which parties,
since Carter-Ruck declined to answer our questions about this
at the time—but we are aware that the order was served on
a number of media organisations, including the publishers of The
Independent and The Financial Times.
It follows that reporting of the PQ would have
put at risk of an application for contempt of court not only GNM
but also others served with the order by Carter-Ruck. That potential
liability is in accordance with well-established legal principle
(often referred to as the "Spycatcher" principle).
Reporting Parliament: the attitude of Trafigura
and Carter-Ruck
Mr Stephenson refers to correspondence between
Trafigura and GNM on 12 October 2009. At 13.06 on Monday 12 October
2009, having learned about the publication of Mr Farrelly's PQ
on the order paper that morning, and as a matter of courtesy given
the wording of the Order, GNM's legal department wrote to Carter-Ruck,
drawing the PQ to their attention, stating that existence of the
Minton Report and the injunction were now in the public domain
and indicating that The Guardian wished to publish information
about the PQ "tonight". There can have been no doubt
that what was in issue was The Guardian's ability to report,
contemporaneously, Parliamentary proceedings. In our view, the
fact that the written question was on the Parliamentary website
placed the existence of the injunction into the public domain.
Had there been no intention by Carter-Ruck (or
their clients) to seek to impose any inhibition upon the reporting
of Parliament, then a positive response to that effect might have
been expected to GNM's letter. Instead, Carter-Ruck's reply, timed
at 14.23, was to very different effect.
As you can see from that letter, which I am
enclosing along with all the correspondence of 12 and 13 October,
it does not say or suggest that Carter-Ruck had not been able
to take instructions and, indeed, at one point, it specifically
refers to their clients having "no confidence" that
any reporting by the Guardian would be fair. Carter-Ruck
questioned whether the reporting of the PQ on the parliamentary
website placed the existence of the injunction in the public domain
(a somewhat surprising suggestion but one which they did not in
fact concede until midday on 13 October) and said that that was
a matter that they wished to consider and take instructions on.
Carter-Ruck asserted that:
"the threatened publication referring to
existence of the injunction would, absent a variation to the Order,
place the Guardian in contempt of court".
Carter-Ruck asked for an immediate confirmation
that the publication mentioned in our letter—that is, reporting
of Parliament in the Guardian—would not take place.
They complained that the deadline mentioned by us did not allow
them time to consider the terms of a variation to the order (again,
a somewhat surprising suggestion). Moreover, they claimed that:
"there is no urgency to the reporting.."
The letter ended with a complaint about GNM's
conduct of this matter and about costs.
GNM's legal department replied to that letter
at approximately 17.52. The letter asked Carter-Ruck to confirm,
by 18.30, that their clients would agree to a variation of the
Order. Wording was enclosed, which was entirely clear and straightforward.
Again, if there was never any intention to impede reporting of
Parliament, it could have been agreed to at once.
Carter-Ruck did not address the principle or
the wording proposed by GNM. Instead, in their response at 18.37,
Carter-Ruck again claimed "there is no urgency to this matter".
They stated that they would take instructions and "revert
tomorrow".
In these circumstances, it cannot credibly be
disputed that GNM was being prevented by Carter Ruck from reporting
Parliament, on legal grounds. There is no reason to doubt that,
in the circumstances, publication by the Guardian of the
PQ would have resulted in an application by Carter-Ruck to commit
GNM for contempt of court, for breach of the plain words of the
order quoted above. At the very least, GNM was on notice of an
express threat of such application.
That being the position, the Guardian
reported on matters as they then stood, so far as was permitted
by the order, and gave notice of its intention to seek an urgent
variation of the order the following day. This appeared to us
to be the appropriate course to take.
The Guardian article ("Guardian gagged from
reporting Parliament")
Mr Stephenson refers to the Guardian article
of 13 October 2009, "Guardian gagged from reporting Parliament".
It is unfortunate that Mr Stephenson, who was not involved in
handling this matter for Trafigura at Carter-Ruck, should have
chosen to make a gratuitous, unfair and unfounded assertion that
GNM is responsible for any "misapprehension" of the
true position on the part of the public or Parliament.
As I have said above, it cannot be disputed
that the Guardian was being prevented from reporting Parliament
on legal grounds. As far as the reference to the Bill of Rights
1688 is concerned, mentioned by Mr Stephenson if only to dismiss
it, this lies at the heart of the matter. The Bill of Rights declared
and asserted certain "ancient rights and liberties".
These included "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". It continues "And
they do claim, demand and insist upon... that no declarations,
judgments, doings or proceedings to the prejudice of the people
in any of the said premises ought in any wise to be drawn hereafter
into consequence or example".
It is from this that the freedom and right of
the media to report parliamentary
proceedings is derived. As the article reported:
"The right to report parliament was the
subject of many struggles in the 18th century, with the MP and
journalist John Wilkes fighting every authority—up to the
king—over the right to keep the public informed. After Wilkes's
battle, wrote the historian Robert Hargreaves, "it gradually
became accepted that the public had a constitutional right to
know what their elected representatives were up to".
As Lord Denning stated in the 1970s in the context
of contempt of court in relation to reporting on Thalidomide (AG
v Times Newspapers Ltd [1973] 1 QB 710 CA at 741), "whatever
comments are made in parliament" can be reported in newspapers
without fear of contempt (emphasis added).
It is our view, therefore, that the Bill of
Rights does have a direct bearing on matters. It proclaims the
right to freedom of expression within Parliament, on which the
right freely to report parliament is founded.
Finally, Mr Stephenson asserts that there "has
never been any suggestion" on the part of Carter-Ruck that
any order in the Trafigura case "could or would have the
effect of restraining debate within Parliament itself". In
this regard, I refer to Carter-Ruck's letter of 14 October 2009,
directed to The Speaker and issued with a press release by the
firm (through another partner, Adam Tudor, who had conduct of
the case), copies of which are available on the Carter Ruck web
site at http://www.carter-ruck.com/ Documents//Letter-Right_Hon_John_Bercow-141009.PDF
and http://www.carter-ruck.com/Documents//Trafigura_Guardian-Press_Release-141009.pdf
While acknowledging that the effect of the "sub
judice" rule was one for the Speaker's "discretion",
Carter-Ruck asserted expressly that the proceedings between Trafigura
and GNM were "active", thereby suggesting plainly that,
in their view, they should not be the subject of any discussion
or debate in Parliament.
Conclusion
I do not propose to comment on the remainder
of Mr Stephenson's letter. Please let me know if there are any
matters with which you would like GNM to deal or if you require
any further information from us.
Gillian Phillips
Director of Editorial Legal Services
9 December 2009
Letter from the Guardian News and Media
Ltd to Carter-Ruck Solicitors, dated 12 October 2009
(1) RJW and (2) SJW v (1) Guardian
News and Media Limited and (2) Persons unknown
We attach a list of questions tabled for a written
answer from the Secretary of State for Justice on 14 October 2009
which has been published on the www.parliament.co.uk website.
It refers to the injunction obtained by your clients on 11 September
2009.
In light of this publication the existence of
the injunction and the Minton report are now in the public domain.
In view of this and the fact that our client agreed to accept
the wording of the undertaking relying on your clients' leading
counsel Richard Spearman QC's specific statement that the undertaking/injunction
bound our client only insofar as any information derived "solely"
from the Minton report and not from information published in some
other way, our client believes it can now refer to these matters.
Our client intends to publish information about this parliamentary
question referring to the existence of the injunction obtained
by your client tonight.
In light of the publication of this parliamentary
question our client also believes that the anonymity order should
now be discharged.
Isobel Griffiths
In-house lawyer
Letter from Carter-Ruck Solicitors to
Guardian News and Media Ltd, dated 12 October 2009
(1) RJW and (2) SJW v (1) The Guardian
(2) Persons unknown
We write in reply to your letter of today's
date, sent shortly after 1pm.
The Minton report
On one interpretation, at the beginning of the
second paragraph of your letter, you appear to suggest that the
question tabled by Mr Farrelly places the draft Minton report
in the public domain. It does not, on any view.
The question contains no information concerning
the nature or content of the report or any information derived
from it. As such, the proviso to which you refer does not allow
you (or any other party with notice of the Order of Maddison J
of 11 September 2009) to publish any part of the draft Minton
report or any information derived from it.
Any such publication by the Guardian would be
a breach of the undertaking which the Guardian gave to the Court
on 18 September 2008 and which is recorded in recital A to the
Order of Sweeney J of that date. Such publication would, therefore,
be a contempt of Court.
Any such publication by the Guardian or any
other party on notice of the injunction would also be a contempt
of Court by reason of paragraph 7A of the Order of Maddison J
and the operation of the Spycatcher principle whereby interim
injunctions in confidence bind third parties on notice of the
terms of the injunction.
Please therefore confirm by immediate return
that Guardian News and Media Limited does not intend to publish
any part of the Minton report or any information derived from
it.
The Injunction and these proceedings
On a separate but related matter, the proviso
to which you refer in your letter does not, of course, apply to
the anonymity provisions concerning the injunction and these proceedings.
The Guardian undertook to the Court on 18 September
2009 not to publish communicate or disclose "(i) the information
that the Claimants have obtained an Injunction and/or (ii) the
existence of these proceedings and/or (iii) the Claimants' interest
in these proceedings" and not to cause or authorise any
other person to do so. There is no public domain, or other similar,
proviso to that undertaking.
Further, the court ordered on 18 September 2009
(with your consent) that the anonymity provisions in paragraphs
5(a)—(c) of the Order of Maddison J be extended until the
determination of our clients' application by the Application Notice
dated 11 September 2009.
Paragraph 5(a) of the Order of Maddison J states
"the application to which this Order relates was held in
private and the publication of all information relating to these
proceedings or of information describing them or the intended
claim is prohibited". Again there is no public domain, or
other relevant, proviso to the Order either of Maddison J or of
Sweeney J.
In the circumstances the threatened publication
referring to the existence of the injunction would, absent a variation
to the Orders, place the Guardian in contempt of Court.
Accordingly, please confirm by immediate return
that the publications threatened will not take place.
Public domain—Anonymity
It is not obvious to us that the reporting of
this written question on the Parliament website places the existence
of the injunction in the public domain. That is a matter which
we wish to consider and take instructions on. We have not been
able to in the time since we received your letter.
Nor, given the matters previously referred to
in correspondence—particularly the potential breaches of
the order already effected by the Guardian—do our clients
have any confident that any reporting by the Guardian of these
proceedings is likely to reflect fairly the circumstances which
led our client to obtain the Orders referred to.
If there is to be any relaxation of the anonymity
provisions as a result of this written question, or as a result
of other developments referred to in the discussions already taking
place between us in other correspondence, then, given the presence
of the persons unknown as parties to the Orders and these proceedings,
that would have to be approved by the Court. The terms of any
variation would need to be carefully considered.
The publication deadline which you threaten
does not allow that. There is no urgency o the reporting which
you threaten which requires the matter to be approached without
due care or without proper consideration of the position of the
other parties to the proceedings.
It is regrettable that once again, the Guardian's
reckless actions in this matter only serve to increase the costs
which our client has had to incur. Finally, please inform us as
to when Mr Leigh, any other Guardian journalist and/or your department
first learned that this Parliamentary question was likely to be
tabled. Please also confirm, by return, whether any such person
provided Mr Farrelly with any of the information upon which he
apparently bases his question.
Carter-Ruck
Letter from Guardian News & Media
Ltd to Carter-Ruck, dated 12 October 2009
(1) RJW and (2) SJW v (1) Guardian
News and Media Limited and (2) Persons unknown
Thank you for your letter of today's date.
The Minton Report
For the avoidance of doubt it is not and has
never been our client's intention to publish any part of the Minton
report or information derived from it today. Our client is aware
of the terms of the undertaking that it entered into on 11 September
2009 and which it agreed it would continued to be bound by on
18 September 2009.
Anonymity order
In view of the fact that the written question
on the Parliamentary website has placed the existence of the existence
of the injunction into the public domain please can you indicate
by 6.30pm if your clients will agree to a variation of the court
order to include a public domain exception. Our client proposes
that a public domain exception is added to the order in the following
terms:
PROVIDING THAT the undertakings given by the
First Defendant shall not prevent it from publishing, communicating
or disclosing any material which after the date of this Order,
and otherwise than as a result of a breach of (a) this Order;
(b) the Order of Sweeney J of 18 September 2009 or (c) the Order
of Maddison J of 11 September 2009, comes into the public domain,
by way of
(a) publication in any United Kingdom or
European national or regional newspaper or magazine (whether in
hard copy form or on any website controlled by the publisher of
any such newspaper or magazine);
(b) publication in any broadcast by a United
Kingdom or European broadcaster (whether on air or on any website
controlled by the broadcaster);
(c) publication or disclosure by or in proceedings
in public of a legislature anywhere in the world;
(d) disclosure in or by any public inquiry;
(e) publication or disclosure to the public
by any government or government department;
(f) publication or disclosure by or in the
course of proceedings of any international organisation or international
conference; or
(g) disclosure in or in relation to court
proceedings in public anywhere in the world.
If your clients do not agree to the terms of
this reasonable public domain exception our client will be forced
to apply immediately to the court for a variation of the order.
Isobel Griffiths
In-house lawyer
Letter from Carter-Ruck to the Guardian
News and Media Ltd, dated 12 October 2009
(1) RJW (2) SJW—and—(1)
The Guardian (2) Persons Unknown
We refer to your second letter of today's date,
received by fax at 17:52.
We find the contents of this letter bizarre;
as we pointed out in our earlier letter of today, there is clearly
no urgency to this matter.
As we also pointed out, any variation of the
undertakings and Orders previously given clearly requires careful
drafting. We do not consider that even your suggested variation
would indeed allow you to publish the article you have proposed.
Furthermore, the Orders of Maddison J and Sweeney
J of course bind not just Guardian News & Media Ltd but also
persons unknown and for this reason (amongst others) it will be
necessary for the Court to consider and approve the terms of any
variation which may be proposed by either party.
We will take instructions on your request to
vary the terms of the undertaking to which you previously consented,
and will revert as soon as possible tomorrow.
In the meantime, we note that you have not answered
any of the questions posed in the final paragraph of our first
letter of today's date, and would ask that you now do so.
Carter-Ruck
Letter from the Guardian News and Media
Ltd to Carter-Ruck Solicitors, dated 13 October 2009
(1) RJW and (2) SJW v (1) Guardian
News and Media Limited and (2) Persons unknown
Thank you for your second letter of 12 October
2009.
Our client is going to apply to court today
to seek an amendment of the existing order to allow it to report
Parliamentary proceedings. We hope, and hereby put you on notice
to the effect, to be before the court at 2.00pm, or as soon as
possible. Although, as previously advised, it also seeks a variation
of the anonymity provisions of the order and the addition of a
public domain exception those matters can be dealt with separately
and save to the extent that the Parliamentary Question issue impacts
on them our client does not intend to address those issues in
its application today.
With a view to trying to agree the terms of
a variation without the necessity of applying to court we attach
a first draft of the wording below.
For the avoidance of doubt, nothing in the order
of Maddison J of 11 September 2009 and/or Sweeney J of 18 September
2009 shall prevent Guardian News and Media Limited or any other
person from reporting upon:
(a) any proceedings of the United Kingdom
Parliament, including any information or matter published on the
website www.parliament.uk
(b) any proceedings of the Scottish Parliament,
including any information or matter published on the website www.scottish.parliament.uk
(c) any proceedings of the National Assembly
for Wales including any information or matter published on the
website www.assemblywales.org; or
(d) any proceedings of the Northern Ireland
Assembly and any information or matter published on the website
www.niassembly.gov.uk
We are willing to discuss reasonable amendments
to this proposed wording.
Please can you state exactly what your clients
are alleging about our client and the basis upon which your clients
are making this allegation? Please can you also send us a list
of all those on whom your clients have served a copy of the injunction
of 11 September 2009.
Isobel Griffiths
In-house lawyer
Letter from the Guardian News and Media
Ltd to Carter-Ruck Solicitors, dated 13 October 2009
(1) RJW and (2) SJW v (1) Guardian
News and Media Limited and (2) Persons unknown
Further to our letter of today please see the
attached copy of an article that has appeared in the latest issue
of Private Eye (16—29 October 2009 Issue No 1247).
Please can we hear from you as soon as possible
in response to our draft wording with a view to trying to agree
a variation to the order without the necessity of a court hearing.
Isobel Griffiths
In-house lawyer
Letter from the Guardian News and Media
Ltd to Carter-Ruck Solicitors, dated 13 October 2009
(1) RJW and (2) SJW v (1) Guardian
News and Media Limited and (2) Persons unknown
Further to our letters of today's date we have
now become aware that information about Paul Farrelly MP's parliamentary
question has been published:
(1) by the Spectator on their website http://www.spectator.co.uk/alexmassie/5417651/british-press-banned-from-reporting-parliament-seriously.thtml
(2) by the blogger guido fawkes on his website
http://order-order.com/
(3) by the Liberal Democrat leader Nick Clegg
on his website http://www.libdemvoice.org/nick-clegg-tweets-about-trafigura-and-carterruck-16497.html
in addition to the article on page 8 of the latest
edition of Private Eye (which we sent to you with our previous
letter).
We understand that the Liberal Democrats this
morning moved to table an urgent question to Jack Straw, Justice
Secretary and Lord Chancellor. David Heath MP says that he wants
`To ask the Lord Chancellor if he will make a statement on the
prevention of reporting of parliamentary proceedings by means
of legal injunction. Paul Burstow MP asked the Speaker to `give
consideration to an urgent debate under Standing Order 24 on the
freedom to report on Parliamentary proceedings.
In light of these developments please can you
confirm by 12pm today to a variation of the order that will allow
our client to publish information about this parliamentary question.
Isobel Griffiths
In-house lawyer
Letter from Carter Ruck Solicitors to
the Guardian News and Media Ltd, dated 13 October 2009
(1) RJW (2) SJW—and—(1)The
Guardian (2) Persons Unknown
We refer to your faxed letter received earlier
this morning.
We were bemused to read the article published
yesterday evening on the Guardian's website and in the hard copy
edition of today's newspaper.
As you are aware, this article completely misrepresents
the proceedings between our client and The Guardian.
You are well aware that, having notified us
only yesterday afternoon of the proposed Parliamentary Question,
we made clear to you the effect of the existing Order (we also
remind you that The Guardian consented to the relevant provisions
of that Order on 18 September). You clearly accepted our interpretation
of the Order and, given the proposal you have made this morning,
you also appear to have accepted that the formulation for dealing
with the situation which had arisen and which you proposed in
your fax of 17:52 last night, would not have assisted either.
More to the point we made clear to you last
night that we would revert to you as soon as possible today. As
we understand it, the Parliamentary Question has been tabled for
tomorrow, which renders even more absurd the tone and implication
of today's article. It is clear that you anticipated that we would
seek to resolve the matter today, but chose instead to rush out
a highly misleading article.
We remind you that you first notified us of
the impending Parliamentary Question shortly after 1pm yesterday.
We repeat our request that you confirm when Mr Leigh, any
other Guardian journalist and/or your department first learned
that the Question was likely to be tabled.
Moving forward, we note the contents of your
fax of this morning. As you know, when the Order of 11 September
2009 was approved by Maddison J and when the Guardian agreed to
provide undertakings then and on 18 September, neither side (nor
the Court) had in contemplation that the subject of these proceedings
would be the focus of a Parliamentary Question. Had the parties
so contemplated, no doubt the Order could and would have been
formulated in such a way as to take account of that possibility.
Now that such a Parliamentary Question has been put forward, we
agree that it is appropriate that the terms of the Order are revisited.
We confirm our client's consent to the draft
wording which you have proposed.
Carter-Ruck
Carter-Ruck Solicitors—Press release
Date 14 October 2009
TRAFIGURA LIMITED AND TRAFIGURA BEHEER BV
Following comments in Parliament today and widespread
media misreporting of this matter, Carter-Ruck (on Trafigura's
and its own behalf) has today written to the Speaker of the House
of Commons.
Our letter, a copy of which is attached, is
also being copied to all Members of Parliament, Members of the
House of Lords and the Ministry of Justice.
Adam Tudor
Isabel Hudson
Letter from Carter-Ruck Solicitors to
The Right Honourable John Bercow, Speaker of the House of Commons,
dated 14 October 2009
Trafigura Limited and Trafigura Beheer BV
We represent Trafigura Limited and Trafigura
Beheer BV ("Trafigura") and we write this letter on
their and this firm's joint behalves.
Trafigura is the subject of a question by Paul
Farrelly, MP for Newcastle-under-Lyme, submitted on 12 October
on the Parliament website, for written answer by the Ministry
of Justice today:
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.
As you will be aware, Mr Farrelly's question
was then the subject of an article published on The Guardian's
website on the evening of 12 October and on the front page of
the hard copy edition of yesterday's newspaper under the headline
"Guardian gagged from reporting Parliament". As
you are also aware, that in turn led to substantial further media
coverage both in The Guardian and elsewhere. Furthermore, it was
referred to by a number of Members in the Chamber yesterday afternoon
and again today.
Unfortunately, much of the media coverage—both
in The Guardian and elsewhere—has been highly misleading,
and we are concerned that this has, in turn, led to Members of
Parliament being misinformed. Accordingly, the purpose of this
letter is to make clear the correct position, so that any future
consideration of the matter by Parliament can take place on an
informed basis.
The Injunction Order
It is the case that, since 11 September 2009
an Order has been in place against The Guardian and Person Unknown.
It should also be stressed that, since 18 September 2009, The
Guardian has consented to that Order remaining in place
pending resolution of this matter.
Until that resolution, it is not appropriate
to comment on the substance of the Order, other than to make clear
that we and our clients are in no doubt that it was entirely appropriate
for us to seek the injunctive relief in question; and that it
was correctly consented to by The Guardian and granted by the
High Court according to established legal principles.
Clearly, the question of whether this matter
is sub judice is entirely a matter for your discretion,
although we would observe that we believe the proceedings to have
been and to remain "active" within the definition of
House Resolution CJ (2001-02) 194-195 of 15 November 2001 in that
arrangements have been made for the hearing of an application
before the Court.
It is important to stress that, contrary to
the clear impression given by The Guardian's article, there has
never been any question of Trafigura applying for an injunction
that had as its purpose the prevention of publication of any matter
arising in Parliament. No such application has ever been made.
Furthermore, when the Order was made (and endorsed
by the High Court) none of the parties or the Court had in contemplation
the possibility of this matter being raised in the UK Parliament.
If they had, then the Order may well have been formulated in such
a way as to allow for such reporting.
Be that as it may, as in fact formulated (and
as The Guardian apparently accepted) reporting on the Parliamentary
Question which had been tabled for answer today would have placed
The Guardian in breach of the Order.
We should stress that the very first occasion
upon which Mr Farrelly's Written Question came to our attention
was when The Guardian faxed it to us on the afternoon of 12 October,
indicating (among other things) that they intended to public information
about Mr Farrelly's Written Question that night.
In response we pointed out that the threatened
publications would breach the terms of the injunction Order and
indeed that, absent a variation to the Orders, would place The
Guardian in contempt of Court. That being the case, we sought
The Guardian's confirmation that they would not so publish.
The correspondence culminated in us confirming,
that evening, that we would taken instructions from our clients
on The Guardian's request to vary the terms of the Undertakings/Order,
and that we would revert "as soon as possible tomorrow"
(Tuesday 13 October). Given that the Written Question was not
due to be answered for another two days, and given that The Guardian
had only raised the matter earlier that afternoon, we believe
that response was entirely reasonable.
Despite (or perhaps because of) that response,
later that evening The Guardian chose to publish their article
online and subsequently on the front page of yesterday's hard
copy.
The following day, the parties duly agreed an
appropriate amendment to the injunction Orders stating that nothing
in those Orders would prevent reporting of UK Parliament Proceedings.
As is demonstrated by the subsequent media and
Parliamentary reaction to it, the clear implication of The Guardian's
coverage is that an injunction had been obtained for the purpose
of restricting publication of a report of proceedings in Parliament.
As we hope is clear from what we say above, that is simply not
correct. We trust that we have made the position clear; needless
to say, please do not hesitate to contact us should you require
any further information.
Carter-Ruck
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