Once again a very interesting article about Trafigura and its super-injunctions appears. There is a difference this time: it is written by a partner, Nigel Tait, in the law firm, Carter-Ruck, who acted for Trafigura.
In case any have forgotten, Trafigura is the oil-trading company which was on receiving end of widespread, and many would say ‘well-deserved’, opprobrium when the waste products of the Probo Koala were dumped in and around Abidjan. The Probo Koala was used, by Trafigura, as a floating treatment plant in which coker naphtha was ‘washed’ with sodium hydroxide to produce gasoline of a quality which didn’t meet European standards but could be sold legitimately in parts of Africa. The waste from this treatment was dumped by Company Tommy in Abidjan.
The main thrust of the article I ignore but the following paragraph is worth picking up on,
‘The injunction concerned a draft report which had been stolen from Trafigura’s offices and then passed to the Guardian – “the Minton report”. The stolen document had been commissioned by Trafigura’s Solicitors, and was prepared by John Minton of an environmental consultancy at their request, in the immediate aftermath of the incident in the Ivory Coast. [Calum’s emphasis] It was also a report based not on any factual investigation or analysis but based on hypothetical ideas as to what may have happened to the slops from the Probo Koala in the Ivory Coast. So, the “report” was in fact a confidential, legally privileged document which had been stolen and illegally passed to the Guardian. The report had also been quickly and authoritatively superseded by a Dutch government analysis of the actual slops themselves, and there had therefore been no need for Trafigura or anyone else to rely on it any further.’
Only after the waste was dumped and the incident became public did Trafigura commission Minton to carry out a desk study of the possible products of the sodium hydroxide washing of the coker naphtha.
But Trafigura knew, before the treatment was carried out on the Probo Koala, that it produced waste which was difficult to dispose of. Their own emails highlight this.
Given this difficulty would it not have been reasonable for Trafigura to have had a
- desk study carried out before treatment started on the Probo Koala
- study carried out on the waste after treatment and before the attempted disposal in Amsterdam
Would a responsible company not have undertaken these two actions?
Trafigura did neither.