The 'Super-injunction' and The Guardian
In early September 2009, Trafigura
learnt that a legally privileged and confidential document – known
now as the draft Minton report – had been unlawfully obtained and
passed to The Guardian, a British newspaper.
Given the timing of the report’s sudden
appearance at The Guardian in early September 2009 (as the full
hearings of the personal injury claims in London approached), the
report appeared to have been sent in an attempt to undermine
Trafigura’s position that the slops of the Probo Koala could simply
not have caused the alleged deaths, miscarriages and serious
illnesses in Abidjan, Ivory Coast – a position which was confirmed
by independent evidence contained in the NFI Report and
subsequently by the findings of 20 independent scientists and
doctors.
On 11th September 2009, Trafigura
obtained an interim injunction – to which The Guardian consented –
preventing publication of the draft Minton Report on the grounds
that it was confidential and legally privileged, and had been
leaked to the paper unlawfully. Trafigura also believed that The
Guardian and other media would misinterpret and misrepresent the
significance of the report.
The High Court judge decided that at
that stage, it was also appropriate that the Guardian should be
prevented from identifying Trafigura or reporting that the company
had obtained an injunction.
The Wikileaks website published the
draft Minton Report several days after the injunction was
granted.
A month later, on 12th October 2009,
The Guardian suddenly provided Trafigura with just a few hours’
notice of an article it intended to publish on a Parliamentary
Question about the draft Minton report. The written question, which
had been posted on the Parliamentary website, had been tabled by
Paul Farrelly MP, a former journalist for The Guardian’s sister
paper The Observer. The answer to the question was due to be
given in Parliament on 14th October.
The Guardian argued that since this
information was now in the public domain, the anonymity order
(preventing Trafigura being identified as having obtained an
injunction) should be dropped.
Trafigura’s lawyers (Carter-Ruck)
quickly made clear to The Guardian that they would discuss a
variation to the injunction urgently and revert on the morning of
the 13th October, the day before the question was due to be
answered in Parliament.
Sadly, despite this, and without any
further notice, The Guardian published a wholly misleading story on
its website on the night of 12th October, saying it had been
‘gagged’ from reporting Parliament. A blogger picked up the
story, and the false and highly misleading details were repeated
elsewhere overnight and in The Guardian the following morning.
The Guardian articles of 12th and 13th
October, and numerous subsequent articles by The Guardian since,
have been a complete distortion of the facts. When the injunction
order was made, clearly neither Trafigura nor its lawyers (nor even
The Guardian) could possibly have known a question on the subject
would have been tabled a month later in Parliament.
Not for one moment did Trafigura or
Carter-Ruck ever improperly gag, or attempt to gag, media reporting
of UK Parliamentary Questions.
The injunction had been granted a month
earlier, but was then varied as soon as was reasonably possible –
within one day – so that The Guardian and others could report the
Parliamentary Question.
A week later, on 16th October 2009,
Trafigura lifted the injunction in its entirety, following
widespread publication of the draft Minton Report overseas. The
next day, The Guardian took a step that in itself demonstrated why
it was that the injunction, taken out by Trafigura, had been a
valid and appropriate step: The Guardian printed an inaccurate and
misleading article that completely distorted both the status and
the contents of the draft Minton Report.
Trafigura had believed from the start
that The Guardian and other media would misinterpret and
misrepresent the significance of the draft Minton Report – this was
exactly what happened.
In spite of the facts and the
corresponding chain of events The Guardian continues to
sensationalise the Minton Report and the injunction story to this
day.