Lawyers leap to Carter-Ruck’s defence
Freedom of speech is the pride of the UK, but with it comes a duty of responsibility. So when newspaper editors start complaining that their freedoms have been curtailed, it becomes a concern for the nation.
Prime Minister Gordon Brown last week called a House of Commons debate about the rise in the number of super-injunctions being issued against newspapers.
Lawyers, however, are puzzled by the fuss, saying it is not a new fight but a natural consequence of the Human Rights Act (HRA) and the contradiction between Article 8, the right to privacy, and Article 10, the right to freedom of expression.
“There’s a myth about super-injunctions,” said Steeles Law partner Dominic Crossley. “Media organisations create the impression that they’re bombarded with injunctions. My personal view is that there aren’t anything like the numbers they say. It’s an exception rather than a rule.”
Withers partner Jennifer McDermott agrees. “They’re very unusual orders,” she said. As she explains, if the injunction turns out to be issued wrongly the applicant would be liable for losses caused to the defendant.
“You have to approach this on the basis that injunctions are not the easiest thing to get,” added Russell Jones & Walker head of media and libel Sarah Webb. “It’s very expensive and the courts are aware that it’s a draconian step. They’re never going to be handed out like aspirin.”
But newspaper lawyers thought it was a step too far when a super-injunction extended to the House of Commons, preventing The Guardian from publishing details of parliamentary questions asked about oil company Trafigura. Trafigura’s libel lawyers Carter-Ruck attempted to stop the reporting of a question by Labour MP Paul Farrelly.
The Guardian director of editorial legal services Gill Phillips said: “I do think there’s a real issue of concern about the use of the so-called super-injunction, particularly where they relate to an anonymous corporate claimant and seek to prevent any mention of the existence of a claim. It needs to be remembered that we have a principle of open justice in this country.”
The Guardian injunction was initially issued on 11 September, when the paper wanted to publish a report relating to a claim that Trafigura was fighting over the toxic dumping of waste in the Ivory Coast (The Lawyer, 23 September).
That case was settled without Trafigura conceding liability. At the same time the oil company also settled a libel case against the claimants’ lawyer, Martyn Day of Leigh Day & Co.
Carter-Ruck argued that the gagging order also prevented the paper from publishing details of questions asked in Westminster. This sparked outrage among MPs about the threat to parliamentary privilege and the order was withdrawn the next day.
The Prime Minister then decided that a further debate about super-injunctions was needed.
Media lawyers responded to the announcement with a degree of scepticism.
“Parliament needs to take pressure away from other things that are going on,” one said. “Suddenly everyone’s talking about it whatever happened to the debate on MPs’ expenses?”
During the parliamentary debate on 21 October Justice Minister Bridget Prentice said she was alarmed over the wider use of super-injunctions and would consider whether to issue new guidelines to the judiciary.
The media, meanwhile, launched attacks on Carter-Ruck for its part in orchestrating the injunction.
Media lawyers have come to the firm’s defence, accepting that it may be a PR disaster but pointing out that Carter-Ruck was only following the rule of law.
“The criticism of Carter-Ruck is unfair,” said Crossley. “They were only following an instruction about which no one will ever know. Nobody will know what’s gone on behind the scenes. The order’s obtained from the courts.”
“Carter-Ruck didn’t invent this,” another media partner said. “They had to look at [the injunction] on the basis of the facts and how it relates to the Human Rights Act.”
There are instances, the lawyer argued, where parliamentary privilege can be curtailed. “For example, there could be an MP who has health issues - there’s no public interest argument there. On the facts of the case you could apply for an injunction to stop a paper publishing.”
The Guardian said it had received at least 12 orders preventing it from publishing in the past year. This compared with six in 2006 and five in 2005.
McDermott conceded that it “seems like an awful lot” and said she was “particularly surprised” that it was The Guardian and not the tabloids that had gone public on injunctions against it.
“I’ve defended newspapers facing claims for breach of confidence and invasion of privacy,” McDermott said. “I also act for claimants asserting such rights. Only rarely have I sought injunctive relief, and only when there’s no question of any public interest defence applying.”
Another lawyer commented: “The difficulty is that the media hates anything that fetters with their discretion.”
The legal maze between the right to privacy and the right to freedom of expression is expected to become more jumbled next month when Chelsea FC footballer Ashley Cole launches a High Court privacy action against the Mirror Group.
Graham Shear, who recently left Teacher Stern to join Berwin Leighton Paisner (The Lawyer, 6 August), has instructed 5 Raymond Buildings’ David Sherborne for Cole. Cole is seeking damages over allegations he had been having affairs and caused upset to his wife, Cheryl Cole.
Lawyers will argue that Cole and his family have a right to privacy and that some of the allegations were factually incorrect.
The Mirror Group will be represented by Farrer & Co partner Julian Pike and Alexandra Marzec, also of 5 Raymond Buildings.
When the HRA was devised, Articles 8 and 10 were intended to conflict, with the courts deciding on definition.
The media is right to defend its corner, but it should not attempt to curtail the right of its subjects to complain. Articles 8 and 10 serve the purposes of all, despite what the critics say.
Readers' comments (14)
Benny | 26-Oct-2009 10:53 am
Kudos to The Lawyer for addressing the 'other side' of the argument (not many publications will).
But while some of the interviewees' justifications might work from a legal perspective, they all miss the point about why the media are upset.
It's not a question of whether injunctions themselves are wrong, as many of the commentators seem to suggest.
Of course people have a right to complain and block unfair reporting.
The point is that it's unacceptable - even undemocratic - to use an injunction, designed to protect personal privacy, to block reporting of parliamentary questions.
The reason is simple: you can't have an accountable, transparent government otherwise.
This much should be obvious but not one of the lawyers you quote even mentions it, except of course Gill Phillips.
MPs' health issues and Ashley Cole's sex life have nothing to do with Trafigura's so-called super-injunction.
And by the way, suggesting the media are trying to "curtail the right of its subjects to complain" is absurd in this context.
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Anonymous | 26-Oct-2009 2:08 pm
I would be surprised if, in the future, any (decent) lawyer would bother spending thousands of pounds instructing a law firm to take out a "super-injunction" when Twitter/Facebook/Google will render it useless.
It's also safe to say that Carter Ruck/Trafigura and Lord Bell (PR rep) have all shot themselves in the foot in this case.
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Marc | 27-Oct-2009 2:25 am
What a pathetic series of attempts to defend the indefensible. Carter Ruck must have known that the injunction could not override Parliamentary Privilege. The criticism is deserved.
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Richard Wilson | 27-Oct-2009 8:04 am
I was one of the organisers of the flashmob protest outside Carter Ruck's offices. "Only following the rule of law" is not much of a defence if that law is unjust, heavily skewed in favour of the rich, and detrimental to democracy. The notion that lawyers who choose to be complicit in the enforcement of such unjust, undemocratic laws should be immune from public criticism is absurd. Carter Ruck's attempts to interfere with the reporting of Parliament, and prevent the holding of a debate on this same issue, were inherently and overtly political actions. If a law firm chooses to engage in political activity, they should expect to find themselves the subject of peaceful, legal, political protests.
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Anonymous | 27-Oct-2009 4:51 pm
"Carter-Ruck didn’t invent this,” another media partner said. “They had to look at [the injunction] on the basis of the facts and how it relates to the Human Rights Act.” "
It may be a long time since my litigation seat, but I'm fairly sure that Carter-Ruck will have drafted the injunction and asked the Court to make the order. So yes, Media partner, I suspect Carter-Ruck did indeed invent this.
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TuttiFrutti | 28-Oct-2009 11:00 am
What a shamefully biased and inaccurate article. It's garbage like this that gives the profession a bad name.
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The Officious Bystander | 28-Oct-2009 11:13 am
What absolute nonsense.
Carter-Ruck have embarrassed the entire profession. I haven't heard a single litigator agree with this shameless brown nosing.
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Scep Tick | 28-Oct-2009 1:03 pm
"For example, there could be an MP who has health issues - there’s no public interest argument there. "
Of COURSE there's public interest there. Shouldn't the voting public know if an MP might be incapacitated from representing them? What if the Prime Minister had turned into a raving lunatic and was declaring war on squid? I should think that's exactly the sort of thing that newspapers should be publishing. How can a lawyer say there's NO public interest in that?
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Rhubard & Custard | 28-Oct-2009 2:14 pm
A journalist defending what Carter Ruck tried to do to the press is appalling.
It's worse than turkeys voting for Christmas. It's a kind sickly and willful collaboration that this paper and any other paper, whether legal trade or not, should be ashamed of.
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Anonymous | 28-Oct-2009 3:24 pm
The journalist is not defending Carter Ruck, but putting forward the views of the people she spoke to.
The recent campaign in the national press to berate lawyers is not without prejudice- they are after all the subject of the attack and more often than not paying extortionate legal costs.
Here the article is saying that Carter Ruck (or any other media firm) doesn't operate in a little legal bubble of its own, created solely for the purposes of its work. It hasn't created a law especially for Carter Ruck clients.
What it has done- with the consent of the court- is attempt to extend the law into the House of Commons. Admittedly that was a step too far, but it was the court's decision to allow the injunction to reach that far.
This journalist is not defending Carter Ruck- what she is doing is putting forward the arguments and views of media lawyers who find themselves under attack from the national press which is reluctant to offer space to the claimant lawyers- or take their views constructively.
I think it is a fair and balanced article.
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marc | 2-Nov-2009 4:10 am
Sorry, but the article is wrong to frame the issue as a battle between "the media" and plaintiffs - it's a question of public policy. The article is wrong to ignore the PR disaster that Carter Ruck have wrought - a client should expect their lawyer be aware of such knock-on effects. Finally, the article is wrong to suggest that Carter Ruck had a reasonable legal argument in seeking to prevent the reporting of Parliamentary proceedings - the injunction failed the "giggle test" and Carter Ruck should have known that it would never survive appeal.
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RichardB | 2-Nov-2009 3:56 pm
The key line in this is "Lawyers accept that this was a PR disaster but that C-R was only following the rule of law..."
We are told time and time again how lawyers are supposed to offer 'commercial' advice and not just trot out black letter law 'solutions'.
In commercial terms it is difficult to imagine a greater catastrophe than this; C-R chancing its arm and finally (and thankfully) hitting the brick wall of Parliamentary Privilege to the utter detriment of its client (who, prior to this, most of the general public hadn't even heard of).
The fact that other media lawyers are so quick to leap to C-R's defence is not the journalist's fault, but proof that this Gravy Train continues to roll.
With the toothless, self-serving PCC on one side and the media lawyer battalions of the rich on the other, the UK press is neither properly regulated nor able to be censured by many of those on whom it inflicts the worst kind of damage. Between them, they contrive to create the worst of all possible worlds: a system where only the rich can defend themselves and Joe Public has virtually no chance of proper redress.
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Anonymous | 3-Nov-2009 12:25 pm
It is interesting that so many comments excoriate Carter Ruck, and that Carter Ruck are to blame for the "PR disaster". We don't know what Carter Ruck advised Trafigura, but I'm sure it included advice on the risks of the action they were instructed to take. It looks to me like Trafigura took a calculated gamble, which didn't come off. The real interest, which only one comment mentions, is why the court decided to grant an order apparently interfering with Parliamentary privilege. It's part of a general constitutional development away from the absolute sovereignty of Parliament, and the answer to the question of who has ultimate sovereignty is still developing. Perhaps the Supreme Court?
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Anonymous | 3-Nov-2009 11:03 pm
What role does the press play in the doctrine of separation of powers?
One would have thought that lawyers act upon clients' instructions.
Policy is anothr issue all together.
Nice article.
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