Environmentalism,  Lawfare,  Libel,  West Africa

Private Eye Wins the Trafigura Challenge

I am pleased to learn, by way of Richard Wilson (no, not that one… or that other one either), that Private Eye has become the first British-based media outlet to report fully on allegations of what Trafigura got up to before their lawyers attempted to do what even Oliver Cromwell did not: subvert Parliamentary privilege through the asking of questions in the House of Commons.

It will come as absolutely no surprise to anyone reading that this relates to the dumping of toxic waste on the Ivorian coast by Trafigura-chartered, Panamanian-registered Probo Koala in July 2006, resulting in a Camelford style local disaster.

Previously, the ship had left the Port of Amsterstam rather than pay for reprocessing costs: as a result, in July 2010, Trafigura was fined €1 million by Dutch courts. Several other countries refused to accept the chemicals before, like the Flying Dutchman, the Probo Koala offloading at a series of sites around the Port of Abidjan.

The ill-effects were immediate and horror-inspiring. Two Trafigura executives arrested were attacked on several occasions in their Ivorian gaol.

One allegation by the Private Eye is that Trafigura’s solictors relating to the original case, McFarlanes had pressured Ivorian witnesses to withdraw their testimony and even paid for the resettlement of some of the plaintiffs involved in a class-action initiated in November 2006 by London law firm, Leigh Day & Co. The article suggests that also the British media were wary of reporting even on the Dutch fine because of Trafigura’s pugilistic use of libel law.

This has started with an immediate libel writ against Leigh Day & Co. As late as April 2009, writs were issued against BBC Newsnight for accusing executives of being fully aware and supportive of the offloading (Trafigura always has insisted that an independent company was responsible and did not inform them).

Although Leigh Day and Co. withdrew individual allegations concerning McFarlane’s approaching witnesses and plantiffs (McFarlane’s never has denied they queried testimony, but maintains they acted ethically), the court proceedings began in January 2007. Similar partial retractions were seen with the BBC which eventually withdrew their specific allegations but continued muttering “e pur si muove”.

Yet, before this second ruling, Trafigura had overreached itself and fallen almost as far as Waleran Bigod. The story still was of interest mainly to environmental journalists and those with an interest in West Africa. Then, a few weeks after the class-action had been settled following The Guardian’s publication in September 2009 of internal e-mails from Trafigura staff, this newspaper reported that a super-injunction had been slapped on the reporting of Parliamentary procedures.

Without, of course, not knowing the nature of this offending event, Paul Staines looked through the orders papers to see that the Labour MP, Paul Farrelly had planned 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.

An online clusterfuck quickly ensued in which the world and his dog relayed this, resulting in Carter Ruck retreating like something out of a Tom and Jerry cartoon.

Perhaps not realizing how much they had outraged all and sundry, Carter Ruck proceeded to call on the Speaker, John Bercow to suppress discussion of the case on the basis of its being sub judice. This failed to impress, amongst others, the Conservative MP Peter Bottomley who vowed to report Carter Ruck to the Law Society.

I would be interested to know what has become of this.

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