What defines a legal victory?
23 September 2009 | By Katy Dowell
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Oil company Trafigura’s media lawyers at Carter Ruck have been busy issuing libel writs defending the company against allegations relating to a major litigation that it settled last week.
The claim will be familiar. It stems from the fallout of what was one of the largest pollution disasters in recent history - the dumping of 400 tonnes of toxic waste in the Ivory Coast by an oil tanker, the Probo Koala.
Trafigura, it was claimed, should be held responsible for the disaster because it hired the independent contractor that dumped the toxic waste around Ivory Coast capital Abidjan. The waste was alleged to have given off toxic fumes that caused locals to suffer varying degrees of illness.
The claim has always been denied by Trafigura. It has never conceded liability, not even in the settlement, details of which were finalised this morning.
The company fervently disputed a UN human rights special report that criticised it for “stifling independent reporting and public criticism”, saying it “utterly rejected” the claims.
Yet Trafigura has agreed to pay 31,000 claimants compensation of around £1,000 each. The payout offer amounts to a total of around £30m. The original claim was for £100m, which would have given the claimants around £3,000 each.
In a statement Trafigura said the firm representing the claimants, Leigh Day & Co, had failed to demonstrate any link between the waste deposited and any deaths, miscarriages, still births or other serious injuries.
The waste, the company said, “could at worst have caused a range of short-term, low-level flu-like symptoms and anxiety”.
While the deal has been done directly with Leigh Day’s clients, it has attracted criticism from within the Ivory Coast.
The Ivorian National Federation of Victims of Toxic Waste has accused Trafigura of failing to meet its moral obligations by continuing to deny liability. It says the company effectively avoided justice by offering to pay off the victims and therefore avoiding the High Court.
In the UK, the press has been quietly jubilant. The Guardian crowed that nasty lawyers were unable to keep down the force of investigative journalism, which continued to apply pressure on the oil company.
Leigh Day’s senior partner Martyn Day, who represented the victims, has been hailed as the crusader who refused to bow down to Trafigura, despite also receiving libel writs from the opposing side.
But it would be naive to suggest that this is a pure victory for the victims: after all Trafigura has never accepted liability, the victims only got a third of their overall claim and legal fees are yet to be discussed.
And the fees are sure to be high. Leigh Day, which worked on a conditional fee arrangement under which the firm put more than £10m of its own money at risk, instructed a plethora of top notch barristers including 39 Essex Street’s Robert Jay QC, Essex Court’s Joe Smouha QC, and Doughty Street’s Richard Hermer and Alison Gerry. Trafigura’s counsel, Macfarlanes partner Simon Nurney, instructed 39 Essex Street’s Edwin Glasgow QC, Sean Wilken, and Rohan Pershad to defend the claim. The defence’s counsel brought in Henderson Chambers’ Charles Gibson QC to negotiate the settlement agreement. It is the first time that Henderson Chambers has worked with 39 Essex Street.
Nevertheless, with many arguing that costs are blocking access to justice in the English and Welsh courts, this is one case that demonstrates what some innovative legal thinking and some press coverage can achieve.