“Caustic washes are banned by most countries due to the hazardous nature of the waste (mercaptans, phenols, smell) and suppliers of caustic are unwilling to dispose of the waste since there are not many facilities remaining in the market.”
“October 2006 Leigh Day was asked by Greenpeace International to provide assistance to the victim groups who had been in touch with them. Greenpeace had been asked to be part of an international commission of inquiry into the events of August 2006, and as a result their name has become well known in the Ivory Coast. A number of victim groups had made contact through Greenpeace and they had passed those contact details to Leigh Day. One of the involved individuals, Mory Cisse, was part of an NGO involved with one of the affected communities. Mory Cisse was keen for Leigh Day to travel out to Abidjan to meet with potential claimants and to bring a claim, and as a result Leigh Day’s lawyers started to investigate both the case and the circumstances surrounding the incident and the logistics of travelling to the Ivory Coast … The Ivory Coast was listed by the Foreign Office, along with Somalia, as one of two countries in the world not to visit on any account. ie, it was listed as an even higher security risk than countries like Iraq and Afghanistan. Albeit this security rating has been downgraded a little over the following three years, Abidjan has been throughout a dangerous city to work in, and one where both legal teams have had to take extreme care in relation to security issues. Leigh Day was approached by additional groups within the Ivory Coast asking for assistance; including Chief Motto, Chief of Djibi Village, who also wanted Leigh Day to travel to the Ivory Coast. 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.”
“● The parties have since August 2006 expended considerable time and money investigating in detail the events in Abidjan in 2006. As part of that process, in excess of 20 independent experts in shipping, chemistry, modelling, toxicology, tropical medicine, veterinary science and psychiatry have been appointed to consider all the issues relating to those events. ● These independent experts are unable to identify a link between exposure to the chemicals released from the slops and deaths miscarriages, still births, birth defects, loss of visual acuity or other serious and chronic injuries. Leigh Day & Co in the light of the expert evidence, now acknowledge that the slops could at worst have caused a range of short term low level flu like symptoms and anxiety. ● From these investigations it is also clear that there are many claims which have been made for symptoms, in some cases perhaps understandably, which are unconnected with any exposure to the slops.”
“82. For the reasons given above I dismiss this application, and propose to proceed in accordance with the judgment of Tomlinson J in BCCI[2006] EWHC 816 (comm) at [132], so that MacDuff J will be asked to assist where necessary, and any such assistance will have to be given in a manner which is compliant both with the overriding objective, and withArticle 6 of the European Convention on Human Rights , which requires that any process adopted must be transparent. The Judge may be requested to provide written answers to questions formulated by the Costs Judge having heard submissions by the parties, and it may be that consideration will have to be given to MacDuff J, sitting with the Costs Judge, should such assistance appear to be appropriate and helpful.” requires that any process adopted must be transparent. The Judge may be requested to provide written answers to questions formulated by the Costs Judge having heard submissions by the parties, and it may be that consideration will have to be given to MacDuff J, sitting with the Costs Judge, should such assistance appear to be appropriate and helpful.”
“(1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs – (a) on the standard basis; or (b) on the indemnity basis, but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount. … (2) Where the amount of costs is to be assessed on the standard basis, the court will – (a) only allow costs which are proportionate to the matters in issue; and (b) resolve any doubt which it may have as to whether costs were reasonably incurred or reasonable and proportionate in amount in favour of the paying party. (Factors which the court may take into account are set out in rule 44.5)” (a) on the standard basis; or (b) on the indemnity basis, but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount. … (a) only allow costs which are proportionate to the matters in issue; and (b) resolve any doubt which it may have as to whether costs were reasonably incurred or reasonable and proportionate in amount in favour of the paying party. (Factors which the court may take into account are set out in rule 44.5)”
“(1) The court is to have regard to all the circumstances in deciding whether costs were – (a) if it is assessing costs on the standard basis – (i) proportionately and reasonably incurred; or (ii) were proportionate and reasonable in amount, or … (2) In particular the court must give effect to any orders which have already been made. (3) The court must also have regard to – (a) the conduct of all the parties, including in particular – (i) conduct before, as well as during, the proceedings; and (ii) the efforts made, if any, before and during the proceedings in order to try to resolve the dispute; (b) the amount or value of any money or property involved; (c) the importance of the matter to all the parties; (d) the particular complexity of the matter or the difficulty or novelty of the questions raised; (e) the skill, effort, specialised knowledge and responsibility involved; (f) the time spent on the case; and (g) the place where and the circumstances in which work or any part of it was done. (Rule 35.4(4) gives the court power to limit the amount that a party may recover with regard to the fees and expenses of an expert)” (ii) were proportionate and reasonable in amount, or … particular – (i) conduct before, as well as during, the proceedings; and (ii) the efforts made, if any, before and during the proceedings in order to try to resolve the dispute; (b) the amount or value of any money or property involved; (c) the importance of the matter to all the parties; (d) the particular complexity of the matter or the difficulty or novelty of the questions raised; (e) the skill, effort, specialised knowledge and responsibility involved; (f) the time spent on the case; and (g) the place where and the circumstances in which work or any part of it was done. (Rule 35.4(4) gives the court power to limit the amount that a party may recover with regard to the fees and expenses of an expert)”
“(1) The court may make an order under this rule where – (a) a party or his legal representative, in connection with a summary or detailed assessment, fails to comply with a rule, practice direction or court order; or (b) it appears to the court that the conduct of a party or his legal representative, before or during the proceedings which gave rise to the assessment proceedings, was unreasonable or improper. (a) a party or his legal representative, in connection with a summary or detailed assessment, fails to comply with a rule, practice direction or court order; or (b) it appears to the court that the conduct of a party or his legal representative, before or during the proceedings which gave rise to the assessment proceedings, was unreasonable or improper. (a) disallow all or part of the costs which are being assessed; or (b) order the party at fault or his legal representative to pay costs which he has caused any other party to incur. (a) the court makes an order under paragraph (2) against a legally represented party; and (b) the party is not present when the order is made, the party’s solicitor must notify his client in writing of the order no later than 7 days after the solicitor received notice of the order.”
“When a court has to assess the reasonableness of a success fee it must have regard to the facts and circumstances as they reasonably appeared to the solicitor at the time when the CFA was entered into (see para 11.7 of the Costs Practice Direction and Atack v Lee[2004] EWCA Civ 1712 at [51]). The principle that the use of hindsight is not permitted when costs are being assessed is an old one: see Francis v Francis andDickerson[1956] P 1887 , 95; and compare, in a different context, Argyll (Duchess) v Beuselink[1972] 2 Lloyd’s Rep 172 , per Megarry J at p 184: “In this world there are few things that could not have been better done if done with hindsight. The advantages of hindsight include the benefit of having a sufficient indication of which of the many factors present are important and which are unimportant. But hindsight is no touchstone [of negligence]… The standard of care to be expected of a professional man must be based on events as they occur, in prospect and not in retrospect.”” “In this world there are few things that could not have been better done if done with hindsight. The advantages of hindsight include the benefit of having a sufficient indication of which of the many factors present are important and which are unimportant. But hindsight is no touchstone [of negligence]… The standard of care to be expected of a professional man must be based on events as they occur, in prospect and not in retrospect.””
“In our view the system of direct application of the approach to taxation of an independent solicitor’s bill to a case such as this has relative simplicity greatly to recommend it, and it seems to have worked without it being thought for many years to lead to significant injustice in the field of taxation where justice is in any event rough justice, in the sense of being compounded of much sensible approximation.”
“In recent years there have been substantial developments in the law relating to the court’s inherent powers to strike out actions as an abuse of process of the court. I can start with the statement in the speech of Lord Diplock in Hunter v Chief Constable of the West Midlands Police[1982] AC 529 at 536: “This is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although no insistent with the literal application of its procedural rules would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view be most unwise if this House were to use this occasion to say anything that may be taken as limiting to fixed categories the kinds of circumstances in which the court as a duty (I disavow the word discretion) to exercise the salutary power.”
“The litigant has a right to have his claim litigated, provided it is not frivolous, vexation [sic] or an abuse of the process. What may constitute such conduct must depend on all the circumstances of the case; the categories are not closed and considerations of public policy and the interests of justice may be very material.”” “This is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although no insistent with the literal application of its procedural rules would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view be most unwise if this House were to use this occasion to say anything that may be taken as limiting to fixed categories the kinds of circumstances in which the court as a duty (I disavow the word discretion) to exercise the salutary power.” “The litigant has a right to have his claim litigated, provided it is not frivolous, vexation [sic] or an abuse of the process. What may constitute such conduct must depend on all the circumstances of the case; the categories are not closed and considerations of public policy and the interests of justice may be very material.””
“The case illustrates how in group litigation the court may have to apply the principles of abuse of process to avoid injustice in circumstances which differ materially from those where one or only a few persons are litigating. These principles were applied in this court in this litigation when we upheld the striking out of the actions against the health authorities and the general practitioners prescribers in the “prescribers case”
“The court is concerned to see that its proceedings are not used in a way that is oppressive and vexatious to the other part [y] or which involves serious injustice to him. If the court is satisfied that the proceedings do have that effect, it has power to strike out on the grounds that they are vexatious and an abuse of process.”” “The court is concerned to see that its proceedings are not used in a way that is oppressive and vexatious to the other part [y] or which involves serious injustice to him. If the court is satisfied that the proceedings do have that effect, it has power to strike out on the grounds that they are vexatious and an abuse of process.””
“21. … Where section 11 of the 1999 Act applies the statute itself gives to the Costs Judge the authority to depart from the ordinary basis of assessment by setting a limit on the amount which it is reasonable for the paying party to pay. In this case a statutory direction of that kind is absent, and there has been no direction by the Court that any basis of assessment other than the standard basis is to be applied. So the costs officers must confine the exercise which they carry out to that which they are directed to perform under the rules. It is not enough for them to refrain from deciding in advance of their assessment that the respondents will receive only a part of the assessed costs, which they have no jurisdiction to do for the reasons explained in Lahey v Pirelli Tyres Ltd. [[2007] EWCA Civ 91 ;[2007] 1 WLR 998 ] They must refrain from introducing a different basis than that prescribed by the rules when they are carrying out their assessment. The test of reasonableness which they must apply is directed to their assessment of the costs incurred by the receiving party: seeCPR 44.5 as to the factors to be taken into account by the Costs Judge when exercising his discretion as to costs. It is not directed to the entirely different question whether the cost to the paying party would be prohibitively expensive, which is what the Aarhus test is concerned with.”
“The Claimants have never suggested they will be seeking to rely on these reports other than in order to comply with paragraph 18.1 of the GLO. They will not be calling any of the doctors and not one of their experts has relied upon a single recording or finding contained in their reports in reaching their own conclusions. Thus the evidence has never played any part at all in how the Claimants seek to prove their cases. It has been obtained and served as part of an administrative formality, no more, no less.”
“At that point we will turn our attention to the follow-on cases that have instructed to us after the cut-off date last year. That group currently contains around 6,600 cases. We anticipate this will grow to a final figure of around 22,000 cases.”
“In respect of each element, elements or components as identified state its volatility, its half life in conditions analogous to those in Abidjan, identify the conditions which are said to be analogous state by reference to both concentration and period and exposure the LD50 of the elemental compound etc.”
“It was the Defendants who pressed us into obtaining far more information for each individual case than I had anticipated with all the cost consequences this entailed.”
“There has to be a global approach and an item by item approach.”
“For my part I do not accept that if a Costs Judge has ruled at the outset of a detailed assessment that the bill as a whole is not disproportionate he is precluded from deciding that an item or a number of items are or appear disproportionate having regard to the “matters in issue”.”
“What is covered by this agreement … your claim for damages … from the date you first instructed us in this matter until the date of this agreement and from the date of this agreement until the conclusion of proceedings.” 116.CFA number 2 states: “What is covered by this agreement … your claim for damages … from the date of this agreement until the conclusion of proceedings …”
“This agreement covers … your claim for damages from the date of the present agreement to the conclusion of the proceedings covered by this agreement.”
“(a) a Government list entry; (b) contemporaneous prescriptions for injuries consistent with exposure to the waste; (c) a copy of a SAMU fiche d’enquete; (d) a recording in the register of a private clinic; (e) relevant employers’ health records; (f) verification that the person lived during the relevant period within one of the key “zones of exposure” identified by the Swiss Research Centre of the Cote d’Ivoire (CSRS) in their epidemiological and environment study on the effects of exposure to the toxic waste in Abidjan, Ivory Coast undertaken from October to December 2006.”
“Rule 18-(1) In any case to which foreign law applies, that law must be pleaded and proved as a fact to the satisfaction of the Judge by expert evidence or sometimes by certain other means. (2) In the absence of satisfactory evidence of foreign law, the court will apply English law to such a case.”
“31. … The inference I would draw is that the Code is there to protect the legitimate interests of the client, and the administration of justice, rather than to relieve paying parties of their obligations to pay costs which have been reasonably incurred.”
“6. Overview of Principles 6.1 The principles that should govern the conduct of the parties are that, unless the circumstances make it inappropriate, before starting proceedings the parties should – (1) exchange sufficient information about the matter to allow them to understand each other’s position and make informed decisions about settlement and how to proceed; (2) make appropriate attempts to resolve the matter without starting proceedings, and in particular consider the use of an appropriate form of ADR in order to do so. 6.2 The parties should act in a reasonable and proportionate manner in all dealings with one another. In particular, the costs incurred in complying should be proportionate to the complexity of the matter and any money at stake. The parties must not use this Practice Direction as a tactical device to secure an unfair advantage for one party or to generate unnecessary costs.”
“2.4 However, the ‘cards on the table’ approach advocated by the protocol is equally appropriate to higher value claims. The spirit, if not the letter of the protocol, should still be followed for multi-track type claims. In accordance with the sense of the civil justice reforms, the court will expect to see the spirit of reasonable preaction behaviour applied in all cases, regardless of the existence of a specific protocol. In particular with regard to personal injury cases with a value of more than the fast track limit, to avoid the necessity of proceedings parties are expected to comply with the protocol as far as possible e.g. in respect of letters before action, exchanging information and documents and agreeing experts.”
“3.1 The general aims of the protocol are – ● to resolve as many disputes as possible without litigation; ● where a claim cannot be resolved to identify the relevant issues which remain in dispute.” litigation; ● where a claim cannot be resolved to identify the relevant issues which remain in dispute.”
“You are incorrect to suggest that Trafigura has never been interested in resolving the claims. The simple fact is that Trafigura has been forced to demonstrate that the alleged injuries are not supported by the evidence and that, in particular, no deaths, miscarriages, still births, serious injuries or chronic conditions were caused as a result of the Claimants’ exposure to the slops and then to defend its position and its reputation against a number of wholly false and/or exaggerated statements.”
“in order to obtain full details of the claims and methods of funding.”
“When considering compliance the court will – (1) be concerned about whether the parties have complied in substance with the relevant principles and requirements, and is not likely to be concerned with minor or technical shortcomings; (2) consider the proportionality of the steps taken, compared to the size and importance of the matter; (3) take account of the urgency of the matter. Where a matter is urgent … the court will expect the parties to comply only to the extent that it is reasonable to do so ...”
“The Practice Direction – Protocols, applies to actions in the Commercial Court and usually it should be observed, although it is sometimes necessary or proper to start proceedings without following the procedures there contemplated: for example, where delays in starting proceedings might prompt forum shopping in other jurisdictions.”
“Further in any event the Defendants’ case is that any of the injuries or symptoms suffered by the lead Claimants were caused and/or exacerbated by all of the following: media reporting, Government statements about the nature of the slops or the illnesses the slops may have caused or political events in Abidjan and/or perceived Government inaction, and/or iatrogenesis.”
“We were constantly hampered by the shortage of factual information and, in certain areas, were working at the forefront of scientific knowledge, for example in the field of atmospheric dispersion. In short, this was a highly complex case which took up a very large amount of my time in 2008 and 2009 and where, because of the lack of hard evidence, I needed to look widely at what was being said about events to try and piece together for the court as accurate a summary as I could, in the light of events following the dumping of the waste in August 2006.”
“18. Within 28 days of entering the Group Register, the Claimants’ solicitors shall provide to the Defendants’ solicitors for each new Claimant the following: 18.1 a medical report confirming the injuries sustained resulting from the alleged exposure to the materials, together with a copy of the Claimants’ medical records (if available) and appropriate translations (where available); and 18.2 a schedule of special damages (if any) with supporting documentation (where available).” 18.1 a medical report confirming the injuries sustained resulting from the alleged exposure to the materials, together with a copy of the Claimants’ medical records (if available) and appropriate translations (where available); and supporting documentation (where available).”
“We are obtaining short medical reports from local doctors who largely know the Claimant where they are producing a report and knew of the injuries at the time. We are pursing the many clinics and hospitals which treated those complaining of illness at the time to see what access we can obtain to their records. We will certainly be looking to supplement the reports with records wherever we can.”
“In addition to the short reports we are looking to obtain more detailed reports in a number of cases to enable the Claimants to have clarity as to exactly what the causative root is that is alleged. We intend serving those in some of the cases to be pleaded.”
“30. I cannot accept that argument. What is the report if it is not “evidence for the purpose of court proceedings”? If it is a mere administrative formality, what was its purpose? Why was there such a requirement in the GLO? Why go to the trouble and expense of requiring a report from a qualified medical practitioner as a mere administrative formality, if the report was not intended to inform. The provision of a medical report can never be regarded as an “administrative formality”
“It is very important to ensure that all persons we represent have suffered genuine personal injury as a result of their exposure to waste. Therefore, your medical report is crucial in establishing the truthfulness of the Claimants’ symptoms, as well as the likely cause of those symptoms. … In the report, you must carefully note down all the person’s symptoms and assess the likelihood of exposure to the toxic waste being the cause of the reported symptoms. To carry out this assessment, you will have to study the person’s medical history as well as his or her age, lifestyle, date the symptoms begun (sic) and the severity and duration of those symptoms.”
“It is crucial that any report you make is a fair and accurate reflection of your professional opinion.”
“In my opinion this questionnaire is both a practical and appropriate way to collect information in a case of this kind.”
“Leigh Day withdraw any allegation that there has been any impropriety on the part of Trafigura, or any of its legal advisors (including Macfarlanes) in investigating the claims”
“In the report you must carefully note down all the person’s symptoms and assess the likelihood of exposure to the toxic waste being the cause of the reported symptoms. To carry out this assessment, you will have to study the person’s medical history as well as his or her age, lifestyle, date the symptoms begun and the severity and duration of those symptoms. Please note that you have to sign a statement of truth at the end of the medical report. You must read this statement carefully. It is crucial that any report you make is a fair and accurate reflection of your professional opinion.”
“I understand my obligation to the court and I have complied with this obligation and will continue to comply with this obligation. I confirm that the facts set out in this report come from my own knowledge and I believe them to be true, and where I have provided an opinion, this opinion represents my professional opinion.”
“Swelling of the limbs/oedema; anaemia, uterine mynoma; tinnitus; childbirth deformities; mental retardation; fibrinemia – we confirm that these are not being pursued as being causally connected by exposure to the toxic waste.”
“In relation to reference to deaths and miscarriages in the statements, we have not accepted the proposed redactions as those sections reflect the beliefs of the witnesses at the time. As we have previously made clear however, we do not advance a positive case or a causal link in relation to either issue.”
“Glad to advise you that the caustic soda washing was successful, and pls immediately cable ETA notice to agents at La Skhirra and tender NOR on arrival, thus enabling us to seek berthing prospects but looks likely berthing will be on arrival. Pls ensure that any remainings of caustic soda in the tanks’ interface are pumped into the slop tank to the best of your ability and kindly do not, repeat do not disclose the presence of the material to anyone at La Skhirra and merely declare it as tank washings.
“The Claimants limit the media costs claimed to those directly incurred in the investigation of the issues of liability, causation and quantum, for example, in analysing newspaper articles concerning the dumping of the waste in Abidjan. The Claimants do not seek to recover the costs relating to media enquiries, press releases, or of the provision of information to the media.”
“Considering that the process for distributing the cards and paying the compensation lacked clarity and believing, at any rate, that it was the body who should take charge, the CNVDT made two (2) requests to the President of Abidjan/Plateau Court of First Instance (the “court”), in response to which the latter issued two orders namely an attachment order appointing the Societé Generale as receiver of the settlement money and the second order dated26 October 2009 authorising CNVDT to serve a writ at an hour’s notice on Leigh Day and the bank for the purpose of ordering the bank to surrender to it the settlement money, and ordering Leigh Day to surrender to it a copy of the settlement agreement concluded with Trafigura “on pain of a penalty of one million (1,000,000) francs CFA for each day of delay.”
“aware of the delays of the proceedings in progress, whoever were to win, would cause to the payment of the compensation to the victims and wishing to ensure they were compensated quickly, asked Maître Tella to try to reconcile the parties”
“We continue to press for the remaining 6,000 odd Claimants to also be paid and as a result of that pressure there will be a meeting between CNVDT, our local lawyers and the Facilitator this weekend to work out the way ahead.”
“We will be including the costs of the payment process within the Claimant’s (sic) bill for the action as a necessary, if unusual, part of the action.”
“Your letter constituted the first indication that you would be seeking to include the costs of the payment process as part of your recoverable costs. Prior to your letter, we had understood from you that the only costs of distribution of the settlement sums were to be the banking charges in respect of operating bank accounts. Your letter was also the first indication we have been given that distribution will be undertaken by way of using payment cards for use at ATM’s. … For the avoidance of doubt, we do not agree that the costs incurred, or to be incurred, in Abidjan, are either appropriate or recoverable as part of the costs of this action. Nor are we clear on why English legal staff need to be present for such distribution.”
“The receipt of the settlement sum into the settlement account, together with the agreement to pay assessed costs as provided herein shall be in full and final satisfaction and settlement of all claims of the settling Claimants in the litigation of whatsoever nature or howsoever arising …” 345.The contentious clause is Clause 18: “Subject to Clauses 19 to 23 the Claimants’ solicitors agree to hold the settlement sum on trust for the benefit of the settling Claimants and to apportion it between the settling Claimants as they think fit. For the avoidance of doubt, the Claimants’ solicitors may pay from the settlement sum any amount necessary by way of banking or administrative charges or other costs incurred in effecting the distribution of the settlement sums between the settlement Claimants (but not in relation to any costs of the Claimants’ solicitors themselves in relation to that distribution) (“the Distribution Charges”).”
“According to the well established practice of this court, the costs of suit when given to a party are not confined to the cost of suit up to the hearing, but include the costs of all accounts and enquiries requisite for carrying out the decree: nor are these latter costs costs for subsequent consideration. That is the general rule, and it is very important that the general rule should not be interfered with. But there is also another general principle which is of no less importance to suitors, namely, that this court has jurisdiction over every order and every decree that it makes, whether with regard to costs or otherwise, and will see that an order is not abused so as to be the cause of oppression to the adverse litigant.”
“In my judgment therefore, as a matter of plain English, the term “the costs of the action” when used in a Tomlin Order (such as that in this action) are capable of including costs incurred after the date of any order staying the action where that order also envisages that the action may be revived for the purpose of carrying the terms into effect and, as a result, costs will have been incurred for that purpose and by the events which gave rise to the need to make that application. However the agreement and order has to be read as a whole and such an interpretation might of course be displaced by other terms. The parties’ intention must be derived from the document in its entirety. …”
“It is suggested that since Mr and Mrs Wallace could recover from the Legal Aid Fund the costs of giving effect to a compromise it would therefore be good sense that an order for costs in their favour against Mr Gale should also cover costs of giving effect to the compromise. There may be some force in that point, but I do not think that it is conclusive. After all we are trying to determine the meaning of the agreement which these parties made. It is notable that express provision was made for some costs in paragraphs 1, 2, 3 and 4 of the schedule; and that express provision did not cover what we are dealing with today. In my judgment, the fees of Mr and Mrs Wallace’s solicitors reasonably incurred in procuring that the settlement be carried out can fairly be described as being part of the costs of the action. It seems to me an unnecessary complication to say that they would have to be recovered, if at all, as damages or costs in some other action. But I do not see that that should cover disbursements, such as hiring the additional expert to grant a certificate. That does not in my judgment form part of the costs of the action in the context of this order. I say that particularly because the other paragraphs of the schedule to the consent order expressly deal with those matters. For my part, I would leave the Judge’s order to stand but I would convey to the Taxing Master my view that disbursements, including in particular the expert’s additional report are not part of the costs of the action.”
“The parties and the settling Claimants acknowledge that there are claims or causes of action which are not contemplated by any of them, whether based on facts known or unknown to them or on the law as it currently stands or may develop, but nevertheless it is their intention to settle all such claims and causes of action by this agreement.”
“There are a number of authorities which have some bearing on the question, but for myself I find them of very little help. What we are required to do is interpret the words “costs of the action” as used by these parties in the order to which they agreed …”
“The settling Claimants and the Defendants agree that, with effect from the date of receipt of the settlement sum into the settlement account, the claims to the settling Claimants in the litigation should be stayed on the terms herein save for the purposes of enforcing this agreement and for the purposes of assessing and enforcing the Defendants’ liability for costs and agree that a joint application be made to the court to make an order in the form attached. …”
“You win your claim if you become finally entitled (whether by agreement, judgment or otherwise) to be paid any damages (including provisional damages) and/or all or part of the legal costs of your substantive claim.”
“We would not be bringing the claims under the “no win no fee” scheme if we did not think we had a strong chance of winning.”
“Positive: (a) The evidence we have suggests when the ship was stopped in Amsterdam waste was heavily toxic/combined with the reaction of the APS in increasing its fees dramatically; (b) this is supported by evidence we have re: the waste in Abidjan both from CIAPOL and the UNDAC Team; (c) we know that Tommy was only recently set up; (d) the deaths and injuries start pretty quickly afterwards; (e) the injuries seem to tie in to the type of injuries to be expected from this type of waste; (f) the London office of Trafigura seems to have been much involved in the whole process; Negative: (a) the company says its toxicology reports were negative; (b) why was the ship not stopped in Amsterdam under Basel Convention; (c) contractually the responsibility may have transferred to Tommy; (d) it may be another part of Trafigura is the appropriate Defendant; (e) could get into a forum battle – fact they have not served an acknowledgment of service is important – may be tied to their case re: Tommy in IC; (f) difficulty of getting the evidence we need in a war-torn country where travel is very dangerous; (g) number of cases of real concern – seems highly likely a lot of bandwagon jumping; (h) criminal prosecutions are ongoing, which may slow down and hamper the civil litigation.”
“(a) limitation 100%; (b) breach of duty 80%; (c) contributory negligence 100%; (d) causation – medical 90%; (e) causation – other 85%; (f) failing to beat P36 % (g) enforcement % (h) other ? % (i) forum 82.5% (j) % Total (a) x (b) x (c) x (d) …. = 50% = chance of winning.”
“novel environmental claim for toxic waste by a British ship in West Africa. Involves many issues of liability, applicable law, causation and individual cases.” “… fabulously complex, both factually and legally … there is no doubt but that the Claimants will face a massive struggle to prove their claims in the face of powerful resourced and fearless opponents.” “[The factors] identified in the schedule to instructing solicitors’ conditional fee agreement.” “This is a complicated legal and factual multi jurisdictional case … it will engage many of the difficulties of multi party litigation and concerns matters that arose in the Ivory Coast. Notwithstanding that the underlying merits of this case are strong and that the Claimant has a good case in respect of both primary liability and causation, the Defendants have denied every aspect of the claim in a detailed defence running into 90 pages. The Defendants have given every indication that they intend to fight every issue to trial.”
“We consider, simply based upon a detailed analysis of the lead Claimants’ evidence and the Claimants’ expert evidence that a substantial number of the lead Claimants will be unsuccessful in trial … We should make it absolutely clear that we consider the group has been inflated by a large number of Claimants who have no arguable basis for claiming, and by claiming in respect of symptoms which are exaggerated and misattributed to the slops.”
“Given that differential rates are not permissible under the contract, does the court have the power, through para 11.8 (2) of the Costs Practice Direction or otherwise, to direct that a success fee is recoverable at different rates for different periods of the proceedings (including a detailed assessment of costs)?”
“57. … We end by reiterating that Costs Judges should be more willing to approve what appear to be high success fees in cases which have gone a long distance towards trial if the maker of the CFA has agreed that a much lower success fee should be payable if the claim settles at an early stage: see Re Claims Direct Test Cases[2003] EWCA Civ 136 at [101],[2003] 4 All ER 508 for an earlier exposition of this principle.”
“the on cost of funding disbursements during the currency of the action, based on (a) overdraft rates at the National Westminster Bank; (b) loss of interest based on interest rates at the National Westminster Bank deposit accounts” was recoverable. Lord Justice Purchas stated (page 1C): “The concept is both simple and novel in the sense that although it could have been an item claimed in almost every bill of costs for over a century, so far as the court knows, such an item has never been claimed before. It is simple in that it depends upon an established item of disbursement cost or expense, to which I shall refer as “the base cost” , within the meaning of RSC O.62, r.28(2) but takes into account the cost of funding the expense between the time the expense was incurred and the date when the order for costs becomes effective. For the purposes of the appeal it matters not whether this represents the cost of raising the money if the money is not in hand, or the loss of the use of the money if the money is in hand but has to be diverted to meeting the disbursement, cost or expense involved. For the sake of brevity I propose to use the expression “funding cost” to cover both aspects.”
“Also much that was said in the judgments in the London Scottish case supports this view. [ie, rejecting the Appellant’s case] In this case a strong court delivered closely reasoned judgments which still have great relevance and force today. Furthermore, I am impressed by the argument that the right to recover costs only arises when in the exercise of its discretion the court makes an order under its statutory powers. In exercising that discretion there is no duty imposed upon the court to award party and party costs on an indemnity basis and by established practice and custom funding costs have never been included in the category of expenses, costs or disbursements envisaged by the statute and RSC O.62. To include them would constitute an extension of the existing category of “legal costs” which is not, under the prevailing circumstances, warranted. Accordingly I would dismiss this appeal.”
“I do not find that either of the suggested methods of addition to the bill is “costs” or “expenses” within the Order.” 455.Lord Justice Nourse, who also agreed, stated (page 23F): “Counsel’s citation of numerous authorities which do not touch the question in issue has confirmed my opinion that our decision must be governed by elementary principles of substantive and procedural law. I am in no doubt that the appellant’s case, however desirable its ends may be, could only have succeeded if legislative intervention in this area had been more extensive than it has. … There can be no obligation to pay costs, and therefore no obligation to pay interest, properly so-called, before an order to pay them has been made. That means that the claim can only be one for quasi-interest extending over the period between the date on which the costs are incurred by the claimant and the date of the order for their reimbursement, a species of claim against which the common law has often reluctantly, but almost always consistently, set its face; see London, Chatham and Dover Railway Co. v. South Eastern Railway Co. [1893] A.C. 429. Alternatively, I would agree that the sums claimed are not “legal costs” within the authorities to which Purchas LJ has referred.”
“It has long been held that the cost of funding litigation is not a recoverable cost as between the parties:” and then quoted Lord Justice Purchas in Hunt. The issue I was considering at that point was: “Is the sum payable by a claimant properly to be regarded as a premium within the meaning ofSection 29 of the Access to Justice Act 1999 ?”
“GPS recorded excessive distance to site so informed villagers that they must attend other sites if they cannot prove serious illness.”
“A. Solicitors with over 8 years post qualification experience including at least 8 years litigation experience. B. Solicitors and legal executives with over 4 years post qualification experience including at least 4 years litigation experience. C. Other solicitors and legal executives and fee earners of equivalent experience. D. Trainee Solicitors, para legals and fee earners of equivalent experience.”
“legal executive” means a Fellow of the Institute of Legal Executives.”
“An hourly rate in excess of the guideline figures may be appropriate for Grade A fee earners in substantial and complex litigation where other factors, including the value of the litigation, the level of complexity, the urgency or importance of the matter as well as any international element would justify a significantly higher rate to reflect higher average costs.”