Tuesday, 23 March 2010

Trafigura Reply in BBC Libel Now Available

Thanks to Richard Wilson of Don’t Get Fooled Again for obtaining, I assume from the High Court, Trafigura’s reply in the BBC Libel case.  Not only has he obtained the document he has allowed me to post about and release it at the same time.  THANK YOU, RICHARD!

Trafigura’s Reply to the BBC’s Defence is available here.  For completeness the BBC’s Defence is also available here.

What is still missing is Trafigura’s original claim.  Those who read the BBC’s defence will notice that it refers to paragraphs in Trafigura’s claim.  Guess that’s the next document to get.

I’ve had a quick look at both documents and my untutored view is that the BBC case is weak and Trafigura’s strong.

Trafigura have involved experts from many fields including shipping, chemistry, modelling, toxicology, tropical medicine, veterinary science and psychiatry.  They present a solid case for the waste being unable to cause any serious illness or effect beyond the malodour.  Other experts may find holes – even lots of holes – in the overall analysis but on first reading their case is evidence–based and well-made.  Having read their Reply I am at a loss to understand why Trafigura would not release this document to me and why they continue to refuse to release copies of the WSP environmental audit of Abidjan.

The BBC case appears weak to me.  For example, they state in Para 3,

“It is denied that the programme meant or was understood to mean that the dumping caused "numerous" miscarriages or "very severe illness with long term chronic effects in tens of thousands of people".  It is admitted that the programme alleged that Trafigura was culpably responsible for causing or permitting the unlawful dumping of highly toxic waste with an obvious potential to cause serious harm to public health as in fact it did.   It is further admitted that the actual consequences alleged in the programme included miscarriages and injury to health of tens of thousands of people including sixteen deaths.  It is averred that in the present context the notion of a "significant number of deaths" lacks ethical meaning.  Any death is "significant" and scandalous if caused by the illegal dumping of waste (as indeed is any substantial injury to public health).”

Either I do not understand this paragraph or it is talking nonsense.

Where the BBC case seems relatively stronger and Trafigura’s relatively weaker is in the knowledge and intentions of Trafigura prior to the illegal disposal of the waste by Compagnie Tommy.  Here Trafigura defend themselves but state that they had not made any claim against the BBC in these areas.

“20. The BBC has chosen to justify allegations of which complaint has not been made in this action, namely criticisms of Trafigura's conduct before Tommy dumped material from the Probo Koala around Abidjan and criticisms of Trafigura's public response after that dumping.
21. Because very serious allegations against Trafigura, its employees and its representatives have been made in those parts of the plea of justification, they are answered below.”

Obviously in any case like this one side will say, “Black” and the other “White” while both might say privately and honestly that the truth is a shade of grey.  There is little of any grey in these documents.

Where is truth in this matter?  I don’t know but, certainly, Trafigura has a body of detailed analysis to defend their position.

Will this be enough to give Trafigura a better name? 

I doubt it. 

The BBC’s Defence and Trafigura’s Reply cannot both be taken as fact.  I assume public perception of Trafigura is more resistant to change than is the legal perception.   Neither view can completely objective. In fact, the degree of objectivity in both is unknown and it must be noted that court cases may determine truth but that is not their primary objective.

Where does the Trafigura affair go from here?

I imagine that there will still be controversy over the validity of Trafigura’s claims about the relative harmlessness of the waste but the focus, I think, will be on their knowledge and intent before the dumping of the waste and on the sweetening of the PMI coker naphtha in Norway and, possibly, elsewhere.

I can also see others looking at the possibility that there is a trade in gasoline to West Africa which does not meet the required standards.  There is already speculation that this is happening [here and here] but I do not suggest that Trafigura or any other company is involved in this trade.

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