Sylvie Aya Agouman v Leigh Day (A Firm)
|England & Wales
|Mr Justice Andrew Smith
|16 June 2016
| EWHC 1324 (QB)
|16 June 2016
|Queen's Bench Division
|Case No: TLQ/15/0381
 EWHC 1324 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Andrew Smith
Case No: TLQ/15/0381
Jacqueline Perry QC and Andrew Bershadski (instructed by Harding Mitchell) for the claimant
Jamie Smith QC (instructed by Bond Dickinson LLP) for the defendants
Hearing dates: 7, 8, 9, 10, 11, 16 and 17 March 2016
The defendants, Leigh Day, are a firm of solicitors who acted for the claimants in a group action in this court, (the "Trafigura litigation"), in which nearly 30,000 nationals and residents of the Ivory Coast claimed "damages in respect of the discharge of chemical waste from a tanker, the 'Probo Koala'". In this judgment I shall refer to those claimants as the "Trafigura Claimants", the two defendants as "Trafigura", and the discharge as the "Trafigura incident" (without expressing any view about Trafigura's responsibility for it). The litigation was settled on 8 September 2009 on terms set out in a written agreement: if and when various conditions had been fulfilled, Trafigura were to pay roughly £30 million in local currency, FCFA 22.5 billions (the "settlement sum"), into a bank account in the Ivory Coast nominated by Leigh Day. Leigh Day nominated an account in their name with Société Generale de Banque en Cote d'Ivoire ("SGBCI"), and on 24 September 2009 Trafigura paid the settlement sum into it.
In October 2009 an organisation called "La Coordination Nationale des Victimes des Decherts Toxiques de Cote D'Ivoire" ("CNVDT"), of which a Mr Claude Gohourou was, or called himself, the President, obtained from the Ivory Coast courts what has been called a "freezing order" over the monies in the SGBCI account, and then in January 2010 the Court of Appeal ordered that the monies be transferred to CNVDT. Leigh Day applied successfully for a stay of the transfer order pending an appeal to the Supreme Court. The President of the Supreme Court reserved the case to himself. On 11 February 2010 and 20 March 2010 Leigh Day entered into agreements with CNVDT, the result of which was that some 23,000 of the Trafigura Claimants were paid their share of the settlement sum, but the balance was transferred to CNVDT, and so, as I understand it, some 6,624 Trafigura Claimants received nothing.
Ms Sylvie Aya Agouman, the claimant in these proceedings, was a Trafigura Claimant who accepted the settlement agreement with Trafigura but received nothing from it. As a representative of those in her position she sues Leigh Day in professional negligence for damages in respect of her share of the settlement sum, the equivalent of about £1,000. Her complaints are (i) that Leigh Day settled the Trafigura litigation on terms whereby the settlement sum was paid in a single tranche into a bank account in the Ivory Coast, where, it is said, it was vulnerable to dishonest claims, including claims enforced by a corrupt judiciary in the Ivory Coast, and (ii) that Leigh Day did nothing to retrieve the fund from the account before the "freezing order" was made on 22 October 2009. It is also said that Leigh Day were in breach of their duties as trustee of the settlement sum in the account. Ms Agouman does not criticise Leigh Day for making the agreements with CNVDT in 2010, nor otherwise complain about how they dealt with the matter after the freezing order was made.
Leigh Day deny that they were negligent or in breach of trust. Further, they contend that:
i) There is no sufficient causal connection between the loss and the matters of which Ms Agouman complains; and
ii) The loss is too remote to be recoverable.
These issues are associated with a question whether Ms Agouman must prove her loss on the balance of probabilities or whether, as Leigh Day contend, the measure of her damages is the value of a lost chance of recovery. Leigh Day also seek relief from any liability for breach of trust under section 61 of the Trustee Act, 1925.
There is no dispute that the claimant suffered loss in that she did not receive anything from the settlement sum. Leigh Day also admit in their defence that:
i) They held the settlement sum in the account with SGBCI on trust. At the start of the trial, the claimant also alleged that there was a trust, and Leigh Day owed duties as trustee, before the settlement sum was paid into the account, but in her closing submissions Ms Jacqueline Perry QC, who represented Ms Agouman, abandoned that contention.
ii) The claim made by CNVDT in the Ivorian courts was fraudulent.
iii) The order of the Court of Appeal that the monies in the account be transferred to CNVDT was "borne of corruption on the part of the Court of Appeal".
iv) The decision of the President of the Supreme Court to reserve the case to himself was also "borne of corruption" on his part.
It was clear from exchanges during the trial that, when it was said that decisions were "borne of corruption", it was meant that they were not made on the basis of the legal merits, but as a result of political influence or bribery or both. Of course, I determine the issues between the parties on these assumptions: I have not heard evidence, and do not myself make findings, about the allegations of fraud and corruption against CNVDT and the Ivorian judiciary.
Two other issues fell away during the trial, and I do not need to determine them. First, in Leigh Day's written opening, Mr Jamie Smith QC, who represented them, contended that these proceedings constitute a collateral attack on a decision of MacDuff J, who on 23 September 2009 approved the terms of settlement with Trafigura on behalf of infants and any other protected Trafigura Claimants. There had been no application to stay these proceedings as an abuse, and it is debatable whether the point was pleaded, but, however that might be, in his oral opening Mr Smith abandoned the contention.
Secondly, at the start of the trial the claimant relied on an exchange between Mr Edwin Glasgow QC, who acted for Trafigura, and Sir Robert Jay, who was then Mr Robert Jay QC and acted for the Trafigura Claimants. (In this judgment, I shall, without disrespect, refer to Sir Robert as "Mr Jay" to reflect the position at the time.) Mr Glasgow recalled that in the early hours of 8 September 2009, when the terms of settlement had been agreed or were close to agreement, he told Mr Jay that he and others acting for Trafigura thought that it was risky for the Trafigura Claimants to have the settlement sum transferred to an account in the Ivory Coast. Ms Perry said in her opening that she would invite the inference that Mr Jay would have conveyed to Leigh Day what Mr Glasgow had said, but she accepted that, if he had not done so, nothing said to Mr Jay was relevant to what I have to decide. Mr Jay gave evidence that, whatever Mr Glasgow might have said to him, he had not passed it on to Leigh Day. Ms Perry did not put it to Mr Martyn Day of Leigh Day in cross-examination that he had been told anything by Mr Jay in this regard: she considered (in my view, rightly) that she had no proper basis to do so, and accepted that therefore the claimant could not rely on anything that Mr Glasgow had said. I therefore say nothing more about this part of the case, except to record my gratitude to Trafigura that, in order to assist the management of the trial, they promptly released Mr Jay and Mr Day from confidentiality obligations in the settlement agreement when this issue arose.
The documents were presented in agreed bundles, but their arrangement made them difficult to follow. Some were in French, and many of these had no translation. Where translations were provided, they had not been agreed between the parties at the start of the trial. I ruled, with the consent of Ms Perry and Mr Smith or at least without resistance from them, that (i) I would ignore any French document of which there was no translation, and (ii) I would assume that the translations provided were accurate unless there was evidence to the contrary. In the event there was no such evidence of any real importance.
The claimant relied on her witness statement dated 14 October 2015, and she was not required to give oral evidence. She called two witnesses to give oral evidence:
i) Mr Mory Cissé, who is a citizen of the Ivory Coast, but presently lives in France. He told me that he cannot return to the Ivory Coast because his life would be in danger if he did. He speaks little English, and he gave his evidence through an interpreter.
ii) Mr Glasgow, who gave evidence after the claimant had issued a witness summons against him. It is understandable that he preferred not to give evidence voluntarily, given his professional duties, including a duty of professional confidentiality owed to his former clients, Trafigura.
The claimant also adduced expert evidence by way of a report by Mr Leon Isaacs about whether and how the funds might, in his opinion, have been more safely remitted to the Trafigura Claimants. He was well qualified to give this evidence: he has great experience of dealing with and advising about international money transfers, with a particular focus on transfers to and within Africa, including the Ivory Coast.
Leigh Day called four witnesses to give oral evidence:
i) Mr Day, who is a solicitor and the senior partner of Leigh Day.
ii) Ms Nichola Marshall, a solicitor who joined Leigh Day as a trainee in August 2006 and continued to work for them after qualifying in October...
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