LIBEL NEWS from Private Eye
Sweet verdict for tourists

THE establishment backlash against libel reform is proceeding as expected. With Edward Garnier, a former libel QC, established as solicitor-general, and free-speech campaigners Evan Harris and Joanne Cash failing to win their parliamentary seats, the forces of darkness are on the march.

Libel lawyers' lobby groups have taken heart from a survey by Sweet & Maxwell. According to the legal publisher, the US Congress (which has recently passed a law to protect Americans from actions in the English courts) and the United Nations (which condemned the chilling effect of English libel law on global debate) have got it all wrong. "Libel tourism" cases - in which the offending article or broadcast is barely viewed in the UK accounted for just three of the 83 defamation lawsuits reported last year. So, carry on regardless!

Defence lawyers are gobsmacked. First, they wonder where Sweet & Maxwell got its figures. When Jack Straw was Labour's justice secretary, the high court staff told his civil servants that they kept no data on libel tourism. The solicitors pointed to all cases that had sparked international concern.

There was the string of actions by the bent Saudi banker Khalid bin Mahfouz against authors who investigated his alleged links to terrorism, which culminated in the absurdity of Mr Justice Eady ordering the pulping of a book that had not even been published in this country. The Ukrainian oligarch Rinat Akhmetov successfully sued the Kyiv Post, which has just 100 British subscribers, and the Obozrevatel website, which does not even publish in English. Most shameful were the Icelandic bankers who sued a Danish newspaper in London shortly before their rotten banks collapsed.

Finally, there is the chilling effect - all the cases that never come to court because publishers see no point in risking paying hundreds of thousands in fees to m 'learned friends. "Nearly every day foreign green and human rights organisations phone me about threats from dictators or multinationals to sue them in London," says Mark Stephens, one of London's leading defence solicitors.

Depressingly but predictably, Sweet & Maxwell does not discuss the chilling effect. It's as if Eady has issued a super-injunction banning all mention of its censorious consequences.

1276 In the Back

From http://private-eye.co.uk/sections.php?section_link=in_the_back&issue=1276

TRAFIGURA'S TOXIC TACTICS

Google “Trafigura” and “vimeo” and the first film you’ll find on the video-sharing site is a Dutch documentary from this May. Helpful libel-reform campaigners have added English subtitles so you can hear witnesses from the Ivory Coast describe the aftermath of the Trafigura-chartered Probo Koala dumping waste in their country.

The Ivorians show the reporter from Nova TV statements to the London courts, where Trafigura fought claims for compensation from alleged victims.

“This is the statement I drew up with Trafigura’s lawyers,” explains one driver who was moving the waste to the dumping grounds. “There are several incorrect paragraphs in this statement. They are false. For example, paragraph 70 reads: ‘During the loading my clothes were stained but I didn’t experience any ill effects.’ That is not correct… Where the stuff touched my skin, I could feel it burn. My skin peeled.”

‘Trafigura wanted us to lie under oath’
Other witnesses tell similar tales. “You could say whatever you want,” a second man says, “except that the product was dangerous, even lethal. The idea was that we would go to England to testify to all who would listen that the waste had no effects on us. Trafigura wanted us to lie under oath.”

Yet another man said that if Trafigura won, they would each get thousands of euros.

The drivers explain that they went into hiding to escape popular anger after 15 people died and hundreds more were injured. Representatives of Trafigura contacted them and flew them to Morocco. One still has his ticket to confirm his story. He also has a photo of a lawyer from Trafigura’s firm, Macfarlanes.

What to make of this? Dutch television’s witnesses asked to remain anonymous. But in 2009 Leigh & Day, the solicitors for Ivorians claiming compensation, accused Macfarlanes of attempting to persuade claimants to change their statements – accusations it later withdrew as part of the overall settlement of the claims. It alleged that Macfarlanes paid for one of the claimants to come to Morocco, where he was met by one of Macfarlanes’ partners, who questioned him for two days and offered inducements to alter his story.

‘We never acted improperly’
Macfarlanes admitted meeting the claimant and paying for his travel, but asserted that it had acted ethically. It feared that Trafigura was facing exaggerated or false claims. But it “never acted improperly or offered any inducements whatsoever to any witnesses or claimants”. To do so, said a spokesman, “would have been obviously wrong and unethical, not to mention unlawful. It would also have been utterly pointless to have offered any inducement to that or any individual, as this would have wholly undermined their evidence when examined in court.”

Trafigura also (notoriously) retained Carter-Fuck, which tried to stop the press reporting evidence against the company given under the protection of parliamentary privilege by the Labour MP Paul Farrelly. That attempt to undermine the ancient liberties of England failed, but the use of super-injunctions and threats of libel actions have had a wider chilling effect.

Dutch editors now openly pity their British counterparts. They note how Fleet Street gave minimal coverage to Trafigura’s first conviction back in July, when a Dutch court fined Trafigura £840,000 for illegally exporting hazardous waste and ruled that the firm had concealed the dangerous nature of the waste.

Meanwhile, the failure of the British press to mention the Nova TV documentary has become a story in itself in Holland. Trafigura threatens Dutch journalists, too, Joop explained to readers. But the huge cost of losing a libel case makes British journalists “reticent”.

Aren’t they just? And if you want to see the Nova documentary you should Google “Trafigura” and “vimeo” sharpish before some lawyer hits it with an injunction. Or you can watch the entire film here...

‘Ratbiter’

Boost UK economy will receive from the royal wedding, according to the Sun Cost of an additional bank holiday to UK economy, according to the CBI

Vodafone tax dodge latest... "I’m not a tax specialist,” admits HMRC chief exec

VODAFONE-A-FRIEND AT HMRC

SHE SAID IT: ‘I’m sorry, I’m not a tax specialist,’ admits HMRC chief exec Dame Lesley Strathie   If HM Revenue & Customs chief executive Dame Lesley Strathie is to be believed, Vodafone’s sweetheart tax deal (see Eyes 1270 and 1275) relieving it of several billion pounds of potential liability, was all above board: “I am satisfied as the accounting officer that the proper process took place here.” So she said to parliament’s public accounts committee last week in what, for a Sir Humphrey-grade mandarin, is a neck-on-the-line statement. When Tory MP Richard Bacon pressed her on specifics, however, she affected to know nothing, prompting the obvious question – which alas nobody asked – of how she had satisfied herself the deal cut the mustard. Questioned on the way HMRC tax boss Dave Hartnett had brought in his favourite tax consultant, David Cruickshank from Deloitte, to advise Vodafone, Strathie replied: “I don’t know that he was brought in”. This was either a fib or an admission that she has not actually looked into the deal with which she professes satisfaction. It was, she blustered, “absolutely wrong to suggest the permanent secretary for tax did some deal in private” (er, which is precisely what happened), before stonewalling awkward questions on the detail in order to protect “taxpayer confidentiality”. ‘Urban myth’ This selectively deployed principle did allow Strathie, however, to refer to HMRC’s press statement dismissing the Eye’s reports as “urban myth”, since Vodafone had cleared the comment (even though the law that HMRC cites when it wants to keep schtum makes no allowance for a taxpayer’s consent for disclosing information). Committee chairman Margaret Hodge had clearly discussed the prospect of a National Audit Office examination of the case, pointing out to Strathie that HMRC’s accounts could be qualified over the deal. But the head of the NAO, former PricewaterhouseCoopers partner Amyas Morse, sitting smiling a few feet from Strathie, soon provided the squirming HMRC boss with some comfort. “What I said was that there might be a case for qualifying on the grounds of irregularity if it was seen that the decision had been made unreasonably. I did warn that I thought that wasn’t very likely.” As Morse knows nothing of the case itself, this sounded suspiciously like the paving of the way for the next phase of the scandal: the whitewash. Clearest breach imaginable Moments later, Bacon explained exactly why the deal was unreasonable, since it conflicted with HMRC’s own published promise that in large tax avoidance cases (and Vodafone is probably the largest ever), where the taxman has a reasonable legal argument, he will never settle for less than the full amount of tax. But Hartnett had done exactly that, despite HMRC’s strong legal position and without consulting his own specialists – on hand for precisely this reason – who would have informed him of the strength of their case. Since Vodafone coughed up just £800m, with time to pay on a further £450m, when its own accounts showed that by March 2006 it had set aside £2.1bn for the tax and interest at that stage, and the settlement covered a further four years worth billions more in lost tax, this was the clearest breach of the policy imaginable. But even this, as Eye readers know, wasn’t the end of the deal. Vodafone was also given a “forward agreement” that profits stashed in Luxembourg won’t be taxed in future, either. Asked about the lawfulness of such agreements (they were ruled unlawful several years ago when a similar arrangement with Mohamed Fayed was struck out by the courts) the woman in charge of Britain’s tax authority again proved that she can’t have looked into Vodafone’s dodgy deal properly – which would have involved questioning the lawfulness of the deal – by blurting: “I’m sorry, I’m not a tax specialist.”

To read these stories in full, buy the latest edition of Private Eye ­ or subscribe here and have the magazine delivered to your home every fortnight.