Archive for October 22nd, 2009

Head of Legal Blog

Lawcast 157: The High Court judgment in the Binyam Mohamed affair on disclosure

Today I am talking to Carl Gardner, ex government lawyer and author of the Head of Legal blog, about the recent Binyam Mohamed judgment on disclosure of information..

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High Court judgment

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House of Commons Debate on Trafigura | Carter-Ruck and Superinjunctions

English Libel Law (Parliamentary Proceedings)

Dr. Evan Harris (Oxford, West and Abingdon) (LD)

I turn briefly to the conduct of Carter-Ruck. It ought to be said—the company has always been willing to make it clear and to talk about it to us when asked, and also volunteered to meet us—that it was not its intention during any of this actively to prevent the reporting of parliamentary proceedings. That is Carter-Ruck’s position. One can accept that at face value. The question is whether what it said in its letters to The Guardian, and indeed what it wrote in its letter to the Speaker, is consistent with that. Essentially, it said that because there was no exemption for reporting parliamentary proceedings in the order made by the judge, The Guardian would be in contempt of court—the implication being that serious penalties would flow from that—if it were to report parliamentary proceedings.

Carter-Ruck did not at any point caveat that with a paragraph stating, “But of course, we understand that no court could or perhaps would ever seek to enforce a contempt action against someone who reported parliamentary proceedings fairly and truthfully.” It is the absence of that caveat that could be said to make it look at the very least that it was seeking to intimidate The Guardian on the basis of a threat of being in contempt if it published parliamentary proceedings. Such a threat would, of course, be extremely effective against most defendants, especially those who do not have the means or the legal resources of The Guardian.

In effect, failure to point out to a defendant that, of course, if it is the view that parliamentary proceedings should not be prevented from being reported, or could not be prevented, letters from a well-resourced law firm acting on behalf of a well-resourced client would have a chilling effect. It is also fair to say that The Guardian was in doubt about its own legal advice on the matter.

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