WIkileaks have published a copy of the extraordinary "super-injunction" High Court Order 11th September 2009 Order by Justice Maddison in the Trafigura toxic waste dumping scandal.
So far, they have not yet published the Order by Mr. Justice Sweeney.This may not,in fact be worded any differently , but could just extend the expired time period of the 11th September Order. Alternatively, it might have imposed extra restrictions, but we have not read it to be able to comment.
However, the legal threats of this first Injunction are bad enough:
Mr. Justice Maddison has "considered the provisions of", but has decided to override the Human Rights Act 1998 section 12 Freedom of expression
Incredibly, and for no good reason such as "national security", or an immediate threat to life etc., Mr Justice Maddison also decided to impose overly broad, draconian, anonymity conditions, using stupid catch all weasel words like "anyone" or "all information". He even tried to ban all mention of the very fact of the secret injunction itself. - a "super-injunction".
There may be good reasons for witness anonymity or for temporary secrecy of evidence during legal proceedings, but not even the most serious national security criminal prosecutions justify pretending that they have never happened in the first place. Why should even greater secrecy be imposed on society at large for purely commercial reasons ?
This is utterly unacceptable in a democracy and must not be allowed to happen again.
How long will the Labour (In)Justice Minister Jack Straw dither about this ?
Here are some extracts from this now expired 11th September Order, which illustrate just how unfair and undemocratic is the Kafkaesque legal hell, which the British (In)Justice system sometimes attempts to inflict on the (mostly innocent) general public.
Who knows if such a "super injunction" Order is still in force or not ? If they keep the very fact of it secret, then they cannot expect anyone to obey it, especially if those people are not specifically named and served notice of the Order as formal Respondents.
Given how trivially easy it would be to forge such an Order document, how can you authenticate it and be sure that it is a genuine one or not, especially if it is being kept secret, even from High Court staff etc. ?
ANONYMITY OF THE APPLICANT
5. UPON it appearing to the Court (i) that the action is one likely to attract publicity, (ii) that publicity revealing the identity of the Applicants is likely to unfairly damage the interests of the Applicants, and (iii) that accordingly publication of details revealing the Applicants's identity ought to be prohibited AND pursuant to the Contempt of Court Act 1981, section 11,the CPR Rules 5.4 and 39.3(40, and the inherent jurisdiction pf the Court until the 18 September 2009 or other order:
Why should something which might allegedly "unfairly damage the interests of " i.e. commercial interest, be given more anonymity protection than a criminal national security" case or something involving an immediate threat to life or serious injury ?
The UK legal system does not attempt to hide the fact that say, Control Orders have been inflicted on an unconvicted terrorist suspect (who may be entirely innocent of any crime), even though the individuals involved have , in all cases so far, been granted anonymity orders.
(a) The application hearing to which this Order relates was held in private and the publication of all information relating to these proceedings or of information describing them or the intended claim is expressly prohibited.
These weasel words "all information relating to" or "information describing" are far too braoad and general.
(b) There be substituted for all purposes in this action in place of reference to the Applicants by name, and whether orally or in writing, references to the letters "RJW" and "SJW".
Possibly fair enough, except for the fact that one of the Applicants is Trafigura Beheer B.V., which is a Netherlands based company which is not within the jurisdiction of the High Court of England and Wales.
(c) To the extent necessary to conceal the identity of the Applicants, any other references, whether to persons or to places or otherwise, be adjusted appropriately, with leave to the parties to apply in default of agreement as to the manner of such adjustment.
ACCESS TO DOCUMENTS ON COURT FILE
6. Pursuant to CPR 5.4(7) the court file will be sealed and no copies of the court file including (without limitation) (i) witness statements, (ii) Claim Form, (iii) statements of case, (iv) applications will be provided to a non party without further order from the Court. Any non party seeking access to or copies of the above-mentioned document from the court file must make an application to the Court proper notice of which must be given to the Applicant's solicitors.
Note that Applicants' solicitors have to be informed, but not any of the Respondents' solicitors.
How is anyone meant to be able to apply to the Court, for something where the very fact of the existence of the legal proceedings are being kept secret ? You cannot "apply to the High Court" for free, it costs money in legal fees, well beyond the finances of ordinary members of the public.
(b) (save for the purpose of carrying out this Order into effect) (i) the information that the Applicants have obtained an injunction and/or (ii) the existence of these proceedings and/or (iii) the Applicants interest in these proceedings; and
PARTIES OTHER THAN THE APPLICANT AND THE RESPONDENT
18. Effect of this order
It is a contempt of court for any person notified of this order knowingly to assist in or permit a breach of this order. Any person doing so may be imprisoned, fined or their assets seized.
The threat of Contempt of Court is what has muzzled the British mainstream media.