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Carter-Rucked

By Steven | October 19, 2009

Heavy-hitting UK libel law firm Carter-Ruck has been getting some bad press lately. The Guardian reported that Carter-Ruck (famously referred to as “Carter-Fuck” by its nemesis Private Eye) had gagged it from reporting Parliamentary proceedings. What’s more, the gagged material related to a report concerning a toxic waste spill by giant oil company Trafigura. And what’s worse, the injunction itself was what’s become known as a “super injunction” meaning that not only are the press gagged from reporting the allegedly confidential material – they are also forbidden from revealing the existence of the injunction itself.

An outrageous attack on free speech, all have agreed. A possible contempt of Parliament, some have suggested.

I’ve taken a particular interest in this since, as some of you know, Carter-Ruck were kind enough to let me spend a couple of weeks with them recently in an observational capacity. I’m afraid I have no insider information about Trafigura though: during my time there, I had no involvement with the case and didn’t discuss it with anyone, and the furore erupted after I left.

Still, it did make me more inclined to seek out Carter-Ruck’s point of view. And it’s here, on their website.

Now, any reader of this blog will know that I’m not a fan of these super-injunctions (though I can conceive of very rare situations where the confidentiality interest itself may be destroyed by public knowledge of the existence of the proceedings). And I have concerns about the way injunctions can often readily be granted at an early stage of proceedings (though again, there are certainly some situations where this is the only way to protect legitimately confidential information). But the Guardian’s reporting – and the predictable shitstorm in the blogosphere – strike me as a bit ill-informed, if Carter-Ruck’s press release is to be believed (and I do).

One would have hoped that people wouldn’t need reminding of one particularly important fact: this injunction was not imposed by Carter-Ruck, it was granted by a judge. Any criticism of the existence and scope of the order ought to be directed, in the first instance, at Justice Maddison.

Second, it seems that a week after the injunction was first ordered, on an urgent and interim basis, the Guardian consented to its continuation pending resolution of the issue. That doesn’t mean that the Guardian accepted that the injunction was justified. But it does mean they weren’t fighting the stop-gap injunction, and accepted that it could stay until the matter could be properly argued.

Third, the injunction arose well before there was any question of the matter being raised in Parliament. It certainly wasn’t an attempt to gag Parliament, or Parliamentary reporting. It was an attempt to protect a confidential report. Carter-Ruck says that, if anyone had raised the possibility of Parliamentary coverage when the injunction was being formulated, they probably would have agreed to exclude it from the ambit of the injunction. (This is credible because it’s common to exclude material that’s in the public domain, and it’s hard to see how Carter-Ruck could have argued to keep it in the gag. What’s more, once it became a live issue, they took instructions from their clients and pretty quickly agreed to consent to its removal from the terms of the injunction).

Carter-Ruck has written to the Speaker of the House, trying to set the record straight and head off ill-informed comment by politicians and the media (good luck with that). They also noted the Parliamentary resolution that Parliament does not discuss active court proceedings. I’ve said before that Parliament should really only be leery of discussing active court proceedings in such way that they might be prejudiced. Still, isn’t it fair game for Carter-Ruck to point to Parliament’s own rules? As they say in their letter, “clearly, the question of whether this matter is sub judice is entirely a matter for your discretion…”

So what’s the Guardian’s headline? Carter-Ruck in new move to stop debate in Parliament.

Sheesh. What’s a poor Machiavellian Libel Bully to do?

Topics: Breach of confidence, Injunctions, Internet issues, Media ethics, Suppression orders | No Comments »

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