Yao Essaie Motto & Others (Respondents/Claimants) v Trafigura Ltd and Another
| Jurisdiction | England & Wales |
| Judge | The Master of the Rolls,Lord Justice Hughes,Lord Justice Maurice Kay |
| Judgment Date | 12 October 2011 |
| Neutral Citation | [2011] EWCA Civ 1150 |
| Docket Number | Case No: A2/2011/1066 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 October 2011 |
[2011] EWCA Civ 1150
The Master of the Rolls
Lord Justice Maurice Kay, Vice-President of the Court of Appeal, Civil Division
and
Lord Justice Hughes
Case No: A2/2011/1066
Case No HQ06X03370 & others
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
SENIOR COURTS COSTS OFFICE
The Senior Costs Judge
Royal Courts of Justice
Strand, London, WC2A 2LL
Charles Gibson QC, Nicholas Bacon QC, Malcolm Sheehan, and Daniel Saoul (instructed by Macfarlanes LLP) for the Defendants
Christopher Butcher QC, Richard Hermer QC and Benjamin Williams (instructed by Leigh Day & Co) for the Claimants
Hearing date: 27–29 June 2011
Introductory: the factual background
This appeal and cross-appeal raise a number of points arising out of three full and careful judgments of the Senior Costs Judge, Peter Hurst ("the Judge"), dealing with over twenty preliminary issues ahead of a detailed costs assessment. That assessment followed the settlement of a group action brought by nearly 30,000 individual claimants against Trafigura Ltd and its associated Netherlands company, Trafigura Beheer BV (to whom I shall simply refer as "the defendants") for personal injury.
The Judge gave permission to appeal to the defendants on some of the issues for which they sought permission to appeal, and the claimants were also given permission to cross-appeal on a limited number of issues. Cox J (correctly, in my opinion) decided that at least some of the issues were of sufficiently general significance to justify the appeal and cross-appeal being heard by this court.
The basic facts are helpfully set out by the Judge in the first of the three judgments below ("the main judgment"), and the ensuing summary is largely taken from there.
The defendants are members of the Trafigura group of companies, who are very substantial independent oil traders and extractors and traders in ores and minerals. The defendants chartered ships to carry crude naptha which was contaminated with mercaptans (which are sulphur-containing compounds), but it could be made suitable as blendstock petrol by treating it with caustic soda. They looked for suitable locations at which to treat, or wash, the naptha with caustic soda, as such washes are banned in many countries.
Two washing operations were carried out in La Skhirra, Tunisia, but, apparently because of the fumes, no further operations were permitted there. Accordingly, another cargo of naptha which the defendants had taken on board their chartered motor tanker, Probo Koala ("the tanker") in early April 2006, was not discharged there. Since the tanker had the necessary tank and pumping systems, the defendants decided to carry out the washing operations on board.
Washing on board the tanker took place off Malta between April and July 2006. The liquids resulting from the washing operation ("the slops") were allowed to separate and settle, and were then drained to the slop tanks. The total of 544 cubic metres of slops consisted of a mixture of a highly alkaline water solution and an oily liquid, both contaminated with various compounds, including disulphides and mercaptans.
The defendants looked for businesses that could process the slops, and various locations in Europe were considered and rejected. Meanwhile the tanker was on its way to Amsterdam, where it arrived on 2 July 2006, but the slops were found to have too high a "chemical oxygen demand" for the waste to be processed there. The tanker then left Amsterdam, and the defendants unsuccessfully tried to have the slops discharged at Paldiski, Estonia, at Lomé, Togo, and at Lagos, Nigeria. On 17 August 2006 the tanker set sail from Lagos for Abidjan, Côte d'Ivoire, where it arrived on 19 August 2006.
Like the Judge, I will largely take the history in the next seven paragraphs from the narrative in the bill of costs ("the Bill") prepared by the claimants' solicitors, Leigh Day & Co, for the purpose of the detailed assessment.
The defendants appointed a local contractor and a shipping agent in Abidjan to handle the slops. In August 2006, 528 tonnes of chemical waste from the tanker were alleged to have been illegally fly-tipped by the local contractor at locations around Abidjan. In the following weeks, tens of thousands of people in the area reported suffering from a range of similar symptoms, including breathing problems, headaches, vomiting and diarrhoea.
Subsequent expert evidence revealed that the waste was a mixture of naptha and sulphur-enriched caustic soda, which contained a number of unstable potentially toxic chemicals, in particular mercaptans and disulphides (though not some other chemicals initially alleged by the claimants). The chemicals in this waste had the capacity to injure people who inhaled the gases caused by their evaporation and release into the atmosphere ("the fumes"). Health problems resulting from the fumes were alleged to include headaches, eye, throat and skin irritation, respiratory distress, nausea, vomiting, diarrhoea, and even death. However, the claimants now acknowledge that the fumes could, at worst, have caused only a range of short term relatively low level flu like symptoms and anxiety.
Greenpeace International had been asked to be part of an international commission of inquiry into what had happened, and, in October 2006, they asked Leigh Day to provide legal assistance to victims who had been in touch with them. One of the victims, Mory Cisse, who worked for an NGO involved with one of the affected communities, was keen for Leigh Day to travel out to Abidjan to meet potential claimants and to start proceedings.
Leigh Day were also approached by other victims and groups of victims for assistance, and they included Chief Motto, Chief of Djibi Village, who also asked them to travel to Côte d'Ivoire. Another interested agency with whom early contact was made was Sherpa, a French Civil Rights Group, who specialised in the issue of corruption in former French Colonies and who were investigating the events in Abidjan.
As a result of these approaches, Leigh Day started to investigate the case and the logistics of travelling to Côte d'Ivoire. Lawyers from Leigh Day then visited Côte d'Ivoire, and, after carrying out some initial investigations, decided to act for, and issue proceedings on behalf of, those who claimed to have suffered personal injury as a result of the fumes.
Côte d'Ivoire was listed by the Foreign Office, along with Somalia, as one of two countries in the world not to visit on any account (so it was listed as an even higher security risk than Iraq and Afghanistan), although this security rating was downgraded a little over the following three years. Nonetheless, Abidjan has been throughout these proceedings a dangerous city in which to work, and one where Leigh Day (and the defendants' solicitors) have had to take extreme care in relation to security issues.
Meanwhile, the defendants paid US$200 million to the Côte d'Ivoire Government in respect of the incident. The defendants blamed the local contractor, but nonetheless paid the $200 million to try to assist the population in dealing with the effects of the slops. The US$200 million was paid into a fund ("the Fund") to compensate those who suffered as a result of fumes. (The two directors were subsequently released.)
Leigh Day first wrote to the defendants on 25 October 2006, and these proceedings were commenced in November 2006. The following month, Leigh Day drafted an application for a Group Litigation Order ("GLO"), which was heard on 29 January 2007, and a GLO was granted on 16 February 2007. The terms of the GLO were agreed with the defendants' solicitors, Macfarlanes, and they included a requirement that Leigh Day maintain a register of claimants. At first Leigh Day had only 12 clients, but at the time of the application for the GLO they were forecasting that there would be between 3,000 to 5,000 claimants by the summer of 2007. Those numbers continued to increase.
Leigh Day identified prospective claimants by instructing individuals who were paid a commission of 3% of the damages a claimant received for each claimant they found: hence they were known as the 3% representatives. They were equipped with a questionnaire which required potential claimants to provide information such as whether they had been affected by the fumes, the way in which they were affected, and where they were at the time. Potential claimants who responded by saying that they had been significantly affected by the fumes would normally agree to instruct Leigh Day to act for them in the proceedings and to be added to the register of claimants. In due course, they were subjected to a medical examination on Leigh Day's instructions.
Before being added as parties to the proceedings, potential claimants had formally to instruct Leigh Day, and they all did so on a conditional fee (also known as a "no win no fee") basis, as permitted by the Courts and Legal Services Act 1990 as amended by the Access to Justice act 1999 – i.e. if the claimant loses, the lawyer will recover no fees, and, if the claimant wins, the lawyer will claim fees, but they will almost always be paid by the defendants. The quid pro quo for lawyers who act on such a basis is that they can charge an "uplift" or "success fee", which is capped at a maximum of 100% of the lawyer's ordinary or "base" fee, and the success fee is treated as part of the recoverable...
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