There’s been a lot of Trafigura traffic on the internet, for obvious reasons – and a lot of legal questions have been raised. I want to try to cut through some of that and shed some legal light if I can.
I think Richard Edwards of Bristol Law School goes too far in calling the Trafigura injunction “unlawful” in his letter to the Guardian this morning. First, it’s difficult to say this, I think, without being able to refer to the precise terms of the court’s order – and since none of us know what orders the court has made against the Guardian, and the superinjunction we know about may restrict publication and/or discussion of its terms, any such reference is difficult to make.
But what I suspect has happened here is this. First, a legally privileged document has somehow been leaked; solicitors have obtained an injunction to prevent its use and further disclosure. So far, so reasonable: many of those who are outraged by Carter-Ruck’s behaviour this week would also be outraged by publication of their own private correspondence or information (remember the HMRC leak of a couple of years ago?). Everyone must have the right to consult lawyers and prepare their legal defence in private, and if we take that principle seriously it must be enforceable and, as human rights lawyers are happy to say in other contexts, it must apply to everyone, no matter how unattractive. So I have no difficulty in the idea of an injunction being granted here in respect of the report mentioned in Paul Farrelly MP’s Parliamentary question -
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.
Whether a “superinjunction” was really necessary, preventing discussion of the fact that such an injunction has been granted, is another matter. I’ve no problem with superinjunctions in principle – there are a range circumstances in which the publication of the fact of an injunction or the identity of the applicant might defeat the entire purpose of an injunction. An example would be, for instance, if a PLC successfully injuncted a story alleging that it was insolvent – regardless of the truth of the story, the PLC might well be brought crashing down anyway if “the markets” knew it had got such an injunction. If that PLC were a bank, say, then the financial system could be at risk if it were known even that an unidentified bank had sought such an injunction. So superinjunctions do make sense in some circumstances. I share Richard Edwards’ concern about this one, but there may – may – be justification for one in this case. The judge seemed to think so.
What’s obviously problematic is that such an order should extent to reporting Parliamentary proceedings. I doubt very much that the judge intended this order to have such a wide effect: what I suspect has happened is that the order merely prevented discussion of the privileged document, and that Carter-Ruck unwisely sought, in lawyer-to-lawyer discussions, to interpret that as extending even to a report of the Farrelly question. In my view that was far from reasonable, and Carter-Ruck should have sought to vary the terms of the order if they wanted it to extend so far.
A couple of legal factoids need to be addressed here, too. First, there is no question of Carter-Ruck’s behaviour being a contempt of Parliament: the Bill of Rights 1689 protects the MP himself from any court action – not anyone reporting his words. Only Parliament enjoys Parliamentary privilege.
Second, Geoffrey Robertson QC has been widely quoted as suggesting Parliamentary reporting can never be in contempt of court. Take this from the Guardian:
The media lawyer Geoffrey Robertson QC said Lord Denning ruled in the 1970s that “whatever comments are made in parliament” can be reported in newspapers without fear of contempt. He said: “Four rebel MPs asked questions giving the identity of ‘Colonel B’, granted anonymity by a judge on grounds of ‘national security’. The DPP threatened the press might be prosecuted for contempt, but most published.”
I don’t think this is right, if it is what Robertson was saying – and I doubt it was, since in his own textbook on media law he makes clear that although this reflects the practical reality, “it may not strictly accord with the law”. I can’t link you to Lord Denning’s judgment in Attorney General v Times Newspapers  1 All ER 815 – it’s not on BAILII – but it’s clear from reading the relevant passage (at page 823 c) that Lord Denning’s remarks were obiter. He simply assumed this was the position while discussing a slightly different legal point. It’s going too far to say he “ruled” that this was the position. Parliament, while agreeing with Geoffrey Robertson on the practical position, certainly thinks reporting its proceedings can amount to contempt in law – see para. 204 of this report.
So reports of Parliamentary proceedings probably can be contempt of court – at least in so far as they go beyond merely quoting Parliamentary papers, which is protected from legal action under section 3 of the Parliamentary Papers Act 1840 unless done with malice (I’m not clear whether the list of questions including the Farrelly question was published under authority of the House – I suppose so). It’d be difficult for a newspaper to simply quote Parliamentary papers without any kind of comment on them at all, however. And it’s just conceivable, to me, that there might, just might, be circumstances in which an order restraining the publication of Parliamentary proceedings could be lawful, even taking the article 10 freedom of expression into account and balancing any restrictions on it against the public interest – imagine, for instance, an extremist MP who insisted on reading out in the House the address of a person who’s in fear of his or her life from terrorists, or the addresses of women’s refuges throughout the country. Unlikely, but conceivable. Wouldn’t you want to limit wider reporting of this? We ought to be able to rely on MPs’ good sense in not abusing privilege - we couldn’t rely on their probity in claiming expenses, though, could we? And there are, and may be in future, all manner of MPs.
But clarity is vital in injunctions, particularly where they have unusual effects – and restricting Parliamentary reporting certainly is unusual. It cannot be right for an injunction to be interpreted as having such effects unless it does so by clear words – and unless the applicant makes the case for the order to contain such a term, judges should now routinely insist that wide-ranging prior restraint injunctions include an exception for fair and accurate Parliamentary reporting.