Trafigura Guilty

Back in October 2009, there was a stir when Trafigura and their lawyers Carter-Ruck tried to quell discussion and reports about the allegations over the oil company’s involvement in the dumping of loads of toxic waste in the Ivory Coast.

Of course, their ‘super-injunction’ backfired with a Streisand Effect (the act of trying to cover something up leading to it being more widely known).

Nine months later, and finally Trafigura have been found legally liable, after a Dutch court fined them €1m (£840,000) for exporting the waste from Amsterdam. A company employee and the captain of the Probo Koala were also found guilty and fined for their part.

Trafigura will, of course, seek an appeal. But until then, and if it fails, there’s no way that they can try to sue any one for libel if they say that Trafigura illegally sent noxious chemicals to Africa to be dumped, which led to tens of thousands of people falling ill. Hopefully, this will open the door to better compensation, and at the very least make it harder for international companies to so casually exploit the third world.

How not to stop information getting out

Last night, I spotted an odd story on the Guardian website about how they’d been subjected to an injunction that meant they could not report something.

The something was a question that had been tabled in the House of Commons by an MP. The MP’s name was also to be kept secret, along the Ministry that would answer the question, and all relevant information except that the libel specialist law firm Carter-Ruck were acting on behalf of a client.

Seems that this was enough for enterprising bloggers to scour public records searching for Carter-Ruck and find a question from an MP tabled as follows:

N Paul Farrelly (Newcastle-under-Lyme): 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. (as taken from the Spectator blog)

The ‘Minton report’ (available on wikileaks) concerns the dumping of large amounts of highly toxic waste in the West African nation of Cote d’Ivoire.

What happened was that Trafigura (who trade in metals, oil and other commodities) had bought some low quality sulphurous crude called ‘coker naptha’ in Mexico/Texas and wanted to refine it. Instead of bringing it to an established refinery, they took the cheap option of trying to ‘wash’ the coker naptha on board a ship – the Probo Koala. The means of washing was to put quantities of caustic soda (sodium hydroxide) and a catalyst (cobalt phthalocyanine sulfonate, which is a carcinogen).

This had the effect of creating two layers in the naptha. The top layer had far less sulphur in it, was siphoned off for further refining to make petrol and other products. The bottom layer (slops) was made up of a mixture of the caustic soda, catalyst, and much more suplhurous naptha, along with a lot of concentrated impurities and byproducts of the ‘washing’ process

The ship went to Holland, where they tried to hire a company to get rid of the slops. But once this company saw what was in there, they refused to handle the stuff. So, Trafigura sent it to Abijan, Cote d’Ivoire, to deal with. What happened there was that a company called Compagnie Tommy was hired to ‘process’ the slops.

Compagnie Tommy only came into existence a matter of days before the Probo Koala arrived, and while they may have tried to do something to reduce the toxicity of the slops such as adding acids, which would neutralise the highly alkaline caustic soda, but would itself likely result in the creation of hydrogen sulphide gas (which is highly toxic and when combined with water becomes sulphuric acid). Left alone, hydrogen sulphide is also likely to be created as the cocktail breaks down.

Whatever they did or didn’t do to the stuff, they then started to dump it. Clearly they knew that they were doing something wrong, because the sites chosen were spread about and often hidden. But the effects were that many thousands of people fell ill (possibly in the region of 100,000), with a variety of nasty symptoms. At least 15 deaths were attributed to the waste dumping.

Since then (the above events took place over the summer of 2006), Trafigura have been trying to avoid any blame for what happened. The owner of Compagnie Tommy was found guilty for his part and sentenced to 20 years, but Trafigura have been pursued in Cote d’Ivoire, the Netherlands, and the UK.

Now, the Minton report was produced in September 2006, and goes into the likely contents of the slops, and what the effects of them would be. It came out in public fairly recently, and would appear to suggest that Trafigura (who would have seen the report at the time) have been being economical with the truth for the past three years. It was leaked by someone, and this appears to have incensed Trafigura. Whoever it is may well be feeling that they could face punishment or something from Trafigura over this.

A recent UN report was heavily critical of the company, and even though they paid the Ivorian government £100 millions and have offered a further £20 millions in compensation to be shared between about 30,000 victims, they appear to be using libel laws and legal action to try to deflect and silence criticism.

A couple of years ago, a Trafigura employee clumsily tried to edit pages on the Dutch language wikipedia article on the Probo Koala. In May of this year they said they would sue the BBC for libel after Newsnight aired some details on the issue. And, of course, they just tried to stop a newspaper from reporting about a parliamentary question which mentions the issue.

The last one is just bizarre and has backfired massively. They could not legally have stopped the answer from being publicised, and so within a few days the issue would have been out anyway. The fact that all the injunction has done is to spur people who campaign on openness and unfair libel laws to investigate and disseminate material means that more people knew by lunchtime what was going on than would otherwise (apparently #trafigura was among the leading twitter tags all morning). And the Guardian won out anyway when Carter-Ruck did not contest an application to overturn the injunction and so after 1pm they could publish the question, and had a ready-made furore into which to enter looking heroic.

So, which idiot judge granted the original injunction – a restriction of parliamentary privilege and an infringement on the rights of UK citizens to know what is happening in Parliament?

Will Carter-Ruck be fired by Trafigura for spectacularly causing far more attention to the issue than would otherwise have been the case?

What the hell do Barclays and Freshfields think about being drawn into this messy affair?

Will we, and more importantly the Ivorians, ever get to know what Trafigura and Compagnie Tommy knew and did, and when will justice be done for the victims?

Various sources were used, including the above linked Minton report and the Spectator blog article, Wikipedia, Liberal Conspiracy, Ministry of Truth, Guido Fawkes (grudgingly, but he did find the question first and set the dogs loose) and of course the Guardian.