That Trafigura illegally dumped 500 tons of hazardous waste in Abidjan in 2006, leading to a public health emergency where many thousands of people sought treatment, is not in dispute.
Trafigura has paid $200 million to the government of the Ivory Coast and settled in London for £30 million a joint action made by 31,000 Ivorians.
Trafigura has insisted on the BBC accepting that the toxic waste dumped by the Probo Koala did not cause deaths, serious or long-term injuries, and withdrawing Newsnight's report alleging that it did so. Trafigura's victory today is that the BBC has agreed to do so.
Carter-Ruck told the court in the agreed statement that the multi-million pound compensation settlement involved a joint statement between Trafigura and those affected which "recorded that the experts instructed in that case had been unable to identify any link between exposure to the slops and the deaths, miscarriages and chronic and long-term injuries alleged". The BBC now also accept this and withdraw their report to the contrary.
United Nations Special Rapporteur Prof. Okechukwu Ibeanu had earlier concluded in a report published on 3 September 2009 that:
"On the basis of the above considerations and taking into account the immediate impact on public health and the proximity of some of the dumping sites to areas where affected populations reside, the Special Rapporteur considers that there seems to be strong prima facie evidence that the reported deaths and adverse health consequences are related to the dumping of the waste from the Probo Koala."
Does this not raise the question as to whether Trafigura or Carter-Ruck might not also want to attempt legal proceedings against the UN Special Rapporteur directly, rather than only taking action against media organisations attempting to report on the controversy caused by the dumping incident?
Critics have described this as creating an atmosphere of "libel chill" against legitimate public scrutiny.
The BBC's concession has already fuelled calls for libel reform, as Left Foot Forward report.
English PEN and Index on Censorship have expressed dismay at the outcome.
Their joint statement says
We believe this is a case of such high public interest that it was incumbent upon a public sector broadcaster like the BBC to have held their ground in order to test in a Court of law the truth of the BBC's report or determine whether a vindication of Trafigura was deserved. The deal is neither open nor transparent.
They believe that costs were a major factor behind the BBC's decision. They cite the leading media lawyer, Mark Stephens of FSI, the cost of such a case would have been in excess of £3 million.
John Kampfner, CEO of Index on Censorship said today:
“Sadly, the BBC has once again buckled in the face of authority or wealthy corporate interests. It has cut a secret deal. This is a black day for British journalism and once more strengthens our resolve to reform our unjust libel laws.”
Carter-Ruck will no doubt differ - and may well consider their defence of Trafigura's public reputation to have been another resounding success.
8000 people have signed the petition for libel reform bill at www.libelreform.org