Agouman v Leigh Day (a firm) [2016] EWHC 1324 (QB)

Case No TLQ/15/0381

[2016] EWHC 1324 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 16/06/2016

Before

MR JUSTICE ANDREW SMITH

Between

Sylvie Aya AgoumanClaimant

Leigh Day (a firm)Defendants

Jacqueline Perry QC and Andrew Bershadski (instructed by Harding Mitchell) for claimant

Jamie Smith QC (instructed by Bond Dickinson LLP) for defendants

Hearing Hearing dates: 7, 8, 9, 10, 11, 16 and 17 March 2016

Judgment

Introduction

[1]The defendants, Leigh Day, are a firm of solicitors who acted for the claimants in a group action in this court, Yao Esaie Motto and ors v Trafigura Limited and Trafigura Baheer BV (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.

[2]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.

[3]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.

[4]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.

[5]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.

[6]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.

[7]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 evidence

[8]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.

[9]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.

[10]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.

[11]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 2008. She is now a partner in the firm. iii) Ms Claire McGregor, who is now a barrister practising in London, but who until 24 September 2009 was employed by Leigh Day as a paralegal. iv) Mr. Jay, who was at the relevant time leading counsel acting for the Trafigura Claimants and as such involved with the discussions leading to the settlement.

[12]All of the witnesses, in my judgment, gave honest evidence and were seeking to assist the court. In the event the evidence of Mr Glasgow and Mr Jay was of little importance to what I have to decide. Much of the evidence of Ms Marshall and Ms McGregor was uncontroversial. I largely accept it, but I am driven to conclude that in their witness statements they understate the difficulties created by Mr Gohourou throughout the time that he was a victims’ representative in the Ivory Coast, and the signs that he was greedy to exploit his position. Although their evidence about this was not really challenged in cross-examination, the overall picture given by Mr Cissé is better supported by the contemporaneous documents, and I prefer it.

[13]I should say something more about Mr Cissé and Mr Day. Mr Day told me that he has considerable experience of international litigation, and specifically of litigation concerning Africa. He referred specifically to a group action for South African claimants, and suits brought by Kenyans in connection with the Mau Mau uprising, by Samburu claimants in respect of unexploded mines, by Zambians making what he described as “a mining claim”, and by Nigerian fisherman complaining about oil spills. He had not been to the Ivory Coast before being involved in the Trafigura litigation. He first visited it in December 2006, and then made visits, typically of a week or so, about once a month until late 2009. I shall have to consider whether, in determining how the settlement sum might be distributed, Mr Day was over-confident that his general experience of Africa equipped him to make a reliable assessment of whether it was safe to keep a large fund in the Ivory Coast. He acknowledged that he understood that there “is judicial corruption in many parts of Africa”, but he apparently thought that it would present no threat to the settlement sum in the SGBCI account, partly because Leigh Day had not previously encountered such problems elsewhere.

[14]Mr Day had overall conduct of the litigation against Trafigura. It was complex and demanding: Mr. Jay described it as the most difficult case in which he was instructed at the bar. It is therefore understandable that, when he gave evidence, Mr Day did not have a clear and detailed recollection of many of the particular questions on which this trial focused: often his evidence heavily depended on his interpretation of documents in Leigh Day’s file rather than his own recollection. In particular, he described himself as having a “supervisory” role, with no direct involvement on a day to day basis, when in 2009 arrangements were made about how any settlement sum might be distributed to Trafigura Claimants. At that time he was busy preparing for the approaching trial, which was fixed to start in October 2009.

[15]Perhaps because he had no detailed memory of events and Leigh Day’s thinking in 2009, Mr Day tended to give discursive answers in cross-examination about his general thinking, without focusing on the issues before the court. He also did not, I am driven to conclude, distinguish between the reasons that drove Leigh Day’s decisions in 2009 and ex post facto justifications that suggested themselves to him. For example, this most likely explains Mr Day’s answers in cross-examination, which were inconsistent with his statement, about a internal report produced in December 2008: see paras 57ff below; in his oral evidence, I conclude, he was seeking to justify disregarding it, and it did not describe his contemporaneous views.

[16]In about 2006 Mr Cissé graduated with a law degree in the Ivory Coast. After the Trafigura incident, he was introduced through his voluntary work to Leigh Day, and worked for them in the Ivory Coast between November 2006 and November 2009 as - in his words – “their main local representative” in relation to the Trafigura claim, initially on a voluntary basis and from May 2007 as a full-time employee. Mr Day said that he was Leigh Day’s “eyes and ears on the ground” and “a very significant figure in the team”. Ms McGregor described him as Leigh Day’s “fixer” in Abidjan. His duties included, inter alia, making and implementing agreements between Leigh Day and the local “representatives”, whom Leigh Day engaged to liaise with the victims for whom they acted. Leigh Day promised him a written contract of employment, but according to his unchallenged evidence this was never provided: the reason was not explained, but there is no suggestion that it was any fault of Mr. Cissé’s.

[17]I consider that Mr Cissé’s evidence was generally reliable. He is in dispute with Leigh Day about a claim that he is owed money, but, in my judgment, this did not colour his evidence, and it was not suggested to him that it did. However, I reject his evidence on one matter: he said that, when he met Mr Day at the Sofitel Hotel in Abidjan in the autumn of 2009, after Trafigura had paid the settlement sum into the SGBCI account, he asked why the settlement sum had not remained in an account in Europe, and that Mr Day had told him that this would have been “more expensive”. I cannot accept that Mr Cissé and Mr Day had such a conversation at that time. Mr Cissé might then have asked Mr Day some question about the money in the SGBCI account, but if so the exchange was vaguer than Mr Cissé recalled and his question was misunderstood by Mr Day: without an interpreter, they would have had difficulty in communicating because Mr Cissé speaks little English and Mr Day understands little French. More likely, Mr Cissé either spoke with someone else or recalled a conversation with Mr Day that took place much later. However that may be, I conclude that there was no exchange after the settlement sum was paid into the account that bears on what I have to decide.

The settlement and the settlement sum

[18]I next explain in more detail what happened to the settlement sum. After some days of intensive negotiations, the parties to the Trafigura litigation reached a settlement agreement on 8 September 2009, about a month before the trial was due to start. In the negotiations Leigh Day had sought Trafigura’s agreement that they should pay the proposed settlement sum into a bank account in the Ivory Coast. As I shall explain, this reflected their earlier decision about how they should distribute it to Trafigura Claimants. They planned to open an account with SGBCI, and to provide each claimant who was entitled to a share with a card, called a Prestis card, which was to be issued by SGBCI and could be used to withdraw money from ATMs (automatic teller machines) or to make purchases.

[19]The settlement agreement therefore provided that Trafigura were to pay the settlement sum into an account in the Ivory Coast nominated by Leigh Day within 7 days of the “Effective Date”, that is to say when Leigh Day served notice that 75% or more of the Trafigura Claimants agreed to the settlement (or Trafigura agreed that the Settlement Agreement should take effect notwithstanding fewer had agreed). Immediately after the agreement was signed, Mr Day flew to the Ivory Coast to recommend the settlement to the Trafigura Claimants, and obtained the assent of the requisite majority: about 78% of them had accepted by 19 September 2009.

[20]The agreement provided that the settlement sum had been calculated on the basis that all Trafigura Claimants who agreed to it (or, in its terminology of, all “Settling Claimants”) should receive a sum of FCFA 750,000 after the deduction of “Distribution Charges” (that is, banking, administrative charges or other distribution costs, apparently some FCFA 30,000). If fewer than 90% of the Trafigura Claimants had elected to become Settling Claimants by 31 December 2009, Trafigura were to be repaid the so-called “Surplus”, calculated by multiplying FCFA 750,000 by the number of Trafigura Claimants who were not Settling Claimants. Thus, there might be a Surplus of the equivalent of £7.5 million (or of even more if Trafigura accepted the Settlement Agreement although fewer than 75% of the Trafigura Claimants had agreed to it). Any Surplus, as Mr Smith pointed out, was to be paid into an Ivorian bank account nominated by Trafigura’s solicitors.

[21]The Settlement Agreement provided that the parties should apply to the English court for a consent order to give approval to the agreement that children and other protected parties should settle on its terms, which included that the Settlement Sum be paid into an Ivorian account. (Over 9,000 of the Trafigura Claimants were children.) Mr Jay wrote an opinion dated 22 September 2009 in support of the application, and he explained the proposals for distributing the settlement sum. He referred to the arrangement that Leigh Day had reached with SGBCI, which he described as “a French-based bank with a branch in Abidjan”. He explained at paragraph 114 of his opinion that it was proposed that payments to settle the claims of children were to be paid to their litigation friends for investment for the child’s use or used for their immediate benefit; and he then expressed the view that it would be impractical and not consistent with the best interests of the children for money to be paid into the English Court and invested by the Court Funds Office. He concluded that, “in the unusual circumstances of this case and the practical and cultural issues that arise, the proposals are the most appropriate available in all the circumstances and are those that will best serve the interests of the child claimants”, and he invited the court to approve them. In his oral evidence at this trial, Mr Jay said that he had given independent consideration to the arrangements devised by Leigh Day, and that, had he been dissatisfied with them, he would have considered himself “duty-bound to attempt to renegotiate the Settlement Agreement”. The following evidence from his witness statement was not challenged, and I accept that it sets out his thinking in 2009:

“I was of course aware that Ivory Coast was a corrupt and unstable regime in 2009, and that there was a risk that the monies might not end up in the right place. That said, my concern related to possible coercion and corruption being deployed after the monies had been withdrawn from the bank by those entitled to them. It never occurred to me that dishonest legal action might be brought in the courts in Abidjan in order to bring about payment of all or part of the monies to nefarious third parties, still less that those courts might accede to such a claim. Indeed, my state of mind at the time was that the settlement fund was as safe and secure as it could be in the hands of the Ivorian subsidiary of a reputable French bank.”

[22]By an order made on 23 September 2009 MacDuff J approved the settlement agreement on behalf of the children and other protected Trafigura Claimants, including the payment to an Ivorian bank. At the hearing he had this exchange with Mr Jay: MacDuff J:

“…I have been worried about how the distribution of this money was going to happen, and the solution you have come up with it as good is as can be devised in the circumstances”

. Mr Jay:

“It is the best that we at the bar could do. We agonised over this and we are where we are. It is not the easiest part of the world”

. MacDuff J:

“I am content with what you say in paragraph 114.”

The context of this exchange was discussion about the proposal explain in Mr Jay’s opinion that the sums paid to settle the claims of children should be paid to their litigation friends or directly for their benefit. It was not, as I understand it, about where the settlement sum was to be held pending distribution. MacDuff J:

“I am content with what you say in paragraph 114.”

[23]On 24 September 2009 Trafigura paid the settlement sum into a bank account with SGBCI by two transfers of FCFA 22,500,000 and FCFA 240,000, a total of FCFA 22,740,000. The account was in Leigh Day’s name, and the claimant pleads that the funds in it were to be held “upon trust on terms that provided for equal division among all the claimants after certain deductions were made for payment to community representatives and some administrative costs”. Leigh Day do not dispute that the funds on the account were held on a trust for beneficiaries including Ms Agouman, and refer in their defence to “the express trust created by the terms of the settlement of the proceedings”, and, as I shall explain, on 4 November 2009, MacDuff J made a declaration to broadly this effect. Whatever its terms, the parties proceeded at trial on the basis that, if the trust was not governed by English law, the applicable law did not materially differ from it.

[24]There is in evidence an agreement between Leigh Day and SGBCI signed on 28 September 2009 about the provision of the Prestis cards (the “Prestis contract”). The plan was to load each card with FCFA 727,500,000 and to distribute one card to each claimant entitled to a share of the settlement sum. The Prestis contract provided that it was subject to Ivorian law and that any dispute about its interpretation or performance should be submitted to the First Instance Court of Abidjan Plateau (Plateau being the business district of Abidjan). The documents in evidence include nothing by way of a mandate for Leigh Day’s account: the only agreement with SGBCI that Leigh Day have disclosed is the Prestis contract. There is therefore no evidence whether the mandate or any contract governing the operation of Leigh Day’s account contained a jurisdiction agreement or made provision for a governing law. However, the claimant has made no complaint in that regard.

[25]In October 2009 Mr Day was in Abidjan with others from Leigh Day’s London office and with Mr Cissé. They were working under pressure of time, not least because a first round of a presidential election was to be held in the Ivory Coast in late October 2009 and Mr Day wished, as I understood his evidence, to have the compensation distributed before then. They became involved in disputes about what should be paid to local representatives, who had liaised between Leigh Day and the Trafigura Claimants. As I shall explain, it had been agreed that they should receive 3% of the settlement sum, but more than one person represented, or claimed to represent, some local associations of victims, and this led to disagreements. Specifically, there was dispute between Mr Gohourou and a Mr Charles Koffi, both of whom represented or claimed to represent claimants from the Vridi area. In an email to Mr Day of 6 October 2009 a paralegal called Ms Pauline Fortier (her married name was Khan, but she had used the name Fortier when first involved in this matter, and I shall so refer to her) wrote that Mr Gohourou had offered Mr Koffi a quarter of the 3% payment for the Vridi area, but this did not resolve their differences.

[26]On about 9 October 2009 Mr Day had a meeting with Mr Gohourou at a hotel in Abidjan. Mr Gohourou came with supporters from a student organisation called Federation Estudiantine et Scolaire de Cote d’Ivoire, or “FESCI”. Mr Cissé described it as “more of a militia at the service of the Government of the time [than a trade union]”, and “known for their violent actions and close association with the Government of the Ivory Coast”, a description which was not challenged and I accept. Mr Gohourou reported to his supporters Mr Day’s proposals for resolving the differences. They were not well received, and the supporters forced their way into the meeting room. Mr Day escaped to his hotel room, but some of his colleagues, including Ms Fortier and Mr Cissé, were, as Mr Cissé put it, “held hostage” for some three hours. Mr Day described this incident as “an example of thuggish behaviour of the kind which was not uncommon among representatives and their followers”. In an email sent to his partners late on 9 October 2009, Mr Day said that he was “not massively worried”, but that the incident was “a good wake up call for us all that putting in place proper security measures is important”.

[27]Mr Day again met Mr Gohourou on 13 October 2009, and Mr Cissé was at that meeting. Mr Gohourou handed to Mr Day a letter dated 13 October 2009 and addressed to Leigh Day. It was on headed letter paper of the CNVDT, and signed by Mr Gohourou under the title “Le President”. It requested a copy of the settlement agreement, and information about the rate of interest paid by the SGBCI on funds in the account and about how the Prestis cards were to operate. On 14 October 2009 Mr Day responded in conciliatory terms in an email to Mr Gohourou, writing that: i) Confidentiality provisions in the settlement agreement prevented him from providing a copy of it, but that he would discuss with counsel whether there was “any way round this”. ii) SGBCI was paying interest of 2.5% pa, and he recognised that the interest must be used “for the benefit of the claimants”, but he said that little would accrue because Leigh Day intended to pay money out quickly. iii) He proposed to produce a leaflet explaining the operation of the cards and to pass it to Mr Gohourou and other representatives “to see if you think it works”. The reply did not refer to the CNVDT or Mr Gohourou’s claim to be its President. Mr Day said in evidence that there were some 45 different groups with representatives, all the representatives vaunted titles such as “President” or “Chairman”, and he had come to treat them “with a pinch of salt”. I infer that he ignored Mr Gohourou’s claim to be president of a national association, if indeed he noticed it at all.

[28]On 22 October 2009, CNVDT, acting through Mr Gohourou and claiming to represent all the Trafigura Claimants, brought proceedings in the Tribunal of First Instance of Abidjan. They sought an order for public disclosure of the settlement agreement with Trafigura, claimed that Leigh Day had made improper payments from the bank account of 120 million FCFA, and argued that the fund needed to be protected. Leigh Day responded by presenting to the Court a petition signed, according to Mr Cissé, by “the majority of the victims”, which stated that they did not authorise the CNVDT or Mr Gohourou to represent them and that they wanted Leigh Day to have control of the fund and its distribution. The Court appointed SGBCI to be receiver of the monies in the account, and directed them to take possession of the settlement sum: the claimant’s pleading in these proceedings refers to this as a “freezing order”, a description admitted in the defence, and such was its effect, if not its form.

[29]On 29 October 2009 CNVDT applied for an order that the funds in the account be transferred to them. The application was adjourned. Later that day, Mr Cissé was told by one of the lead Trafigura Claimants, a Chief Yao Esaie Motto, that a Mr Koné Cheick Oumar, a representative of the Interior Minister of the Ivory Coast, was behind Mr Gohourou’s attempts to seize control of the settlement sum. On Mr Day’s instructions, Mr Cissé had a meeting with Mr Cheick. Mr Cheick sought Mr Cissé’s help to put the CNVDT in control of the fund, although he did not really believe that it was authorised to act for all the victims, and he even offered to collaborate with Mr Cissé rather than Mr Gohourou:

“If you collaborate with us, we will leave Mr Gohourou to the side and you can take on the operation because our intention is not about dealing with small crumbs but about getting all the money”

. Mr Cheick said that the staff at SGBCI could be influenced to increase the interest rate paid on the monies, and proposed that Leigh Day share the additional profit with him and his associates.

[30]Mr Cissé reported the suggestion to Mr Day on 30 October 2009. He wrote that Mr Gohourou and his associates “are only means of manipulation, unknowingly used by the financial legal environment. The real obstacle now is the judiciary, and [Mr Cheick] has much influence on the judiciary. As he can shake the judiciary, so can he shake the banks”. He also wrote that Mr Cheick realised that Mr Gohourou had “deceived him into believing that he controlled all the victims in Abidjan”. Mr Cissé did not identify Mr Cheick by name: in an internal briefing note dated 12 November 2009 Leigh Day wrote that Mr Cissé was too nervous to do so. When Leigh Day consulted their Ivorian lawyers, Klemet, Sawadogo, Kouadio (“KSK”), they appeared to understand to whom Mr Cissé was referring. They too were said to be too nervous to name him, but they advised that “if this man was involved, the decision of the Tribunal might well go against” Leigh Day. Mr Day declined to have any involvement with Mr Cheick or the CNVDT, and his decision was endorsed by KSK.

[31]On 3 November 2009 the Public Prosecutor recommended that the funds in the account at SGBCI be transferred to CNVDT. KSK advised Leigh Day that the Abidjan Court seldom rejected such recommendations.

[32]On 4 November 2009 MacDuff J made a declaration in the English Trafigura proceedings that the settlement sum, less the 3% to be paid to representatives, was “held on trust by Leigh Day & Co for distribution solely and exclusively for the [Trafigura] claimants … and no other persons or entities”. He also made a declaration that any other distribution of the settlement sum would “amount to a frustration” of his order.

[33]The CNVDT’s application to have the money in the account transferred was refused by the Tribunal of First Instance, apparently on or about 6 November 2009, and it was directed that the fund remain with SGBCI until Leigh Day could satisfy the Court that they were authorised by the victims to distribute it. On 22 January 2010 the Court of Appeal of Abidjan (Civil and Commercial Division) granted CNVDT‘s application and ordered that the monies should be transferred to them. It also ordered that Leigh Day pay a daily penalty of 2 million FCFA if they did not publicly disclose the settlement agreement.

[34]As Mr Day explained, Leigh Day sought to contact government ministers and departments to prevent effect being given to the Court’s order for the transfer. In particular, KSK approached the Minister of the Interior, Mr Désiré Tagro, to speak to the President of the Supreme Court in order to have the decision of the Court of Appeal stayed. According to Mr Klemet’s email of 25 January 2010 to Mr Day, Mr Tagro was “fully aware of the decision of the Appeal Court and is disposed to take all necessary measures within the limits of his power”, and recommended that Leigh Day bring proceedings against Mr Gohourou before the Criminal Court. On 27 January 2010 Mr Klemet sent another report to Mr Day about their attempts to persuade SGBCI not to remit the funds to Mr Gohourou so as to give time for the President of the Supreme Court to order a stay. He wrote that they had met for a second time with the “First Lady” and Mr Tagro, and that Mr Tagro had requested the General Manager of SGBCI not to transfer the funds.

[35]On or about 28 January 2010 the President of the Supreme Court of Abidjan ordered that the Court of Appeal’s order be stayed. He reserved the case to himself. On 11 February 2010 and 20 March 2010 Leigh Day entered into agreements with CNVDT, and in accordance with them Leigh Day transferred to CNVDT on 24 May 2010 the sum of FCFA 4,658 million, the rough equivalent of £6 million. As I have said, Leigh Day’s decision to make these agreements has not been criticised in these proceedings and neither was the payment pursuant to them (notwithstanding apparently some beneficiaries of the trust on which the settlement sum had been held were sacrificed for the benefit of the majority). The agreements contemplated that CNVDT would distribute the sum transferred to those Settling Claimants, some 6,624 in number, who had not received and were not to receive their share of the compensation from Leigh Day. However, CNVDT did not distribute anything to Ms Agouman and she has received nothing. It seems probable that most, if not all, of these 6,624 Settling Claimants are in a similar position, but I cannot determine this.

Leigh Day’s conduct of the Trafigura litigation

[36]The Trafigura Claimants contended that Trafigura were responsible for injury and damage resulting from the Trafigura incident on 19 August 2006. According to Mr Day, after the incident the Ivorian Government turned to Greenpeace for help, and Greenpeace in turn invited Leigh Day to assist local community groups. Leigh Day issued the first proceedings against Trafigura in November 2006 in this Court, and the Court made a Group Litigation Order on 16 February 2007. The Trafigura Claimants entered into conditional fee agreements with Leigh Day, and Ms Agouman made one on or about 24 April 2009.

[37]Throughout the relevant period, according to the evidence before me, the Ivory Coast was politically unstable. (As Mr Smith observed, the UK Foreign Office listed the Ivory Coast as one of two countries that should not be visited, the other being Somalia.) The country had recently emerged from a civil war fought between 2002 and 2004, and, while the fighting was largely over, Mr Cissé described the country as being still “virtually at civil war”. In an email to Mr Day in February 2007 he described two political factions: one of President Laurent Gbagbo and the other of Mr Charles Banny, who was the Prime Minister until March or April 2007: Mr Banny was then replaced by Mr Guilaume Soro, but the country remained politically tense.

[38]The email was occasioned by an agreement between Trafigura and the Ivorian Government, of which Mr Cissé disapproved: he said that “all those who have good sense should denounce [its] immorality”. As Mr Glasgow explained, it had been reached after the Chief Executive of Trafigura, Mr Claude Dauphin, and another executivehad been arrested and held in the Maca prison. Under the agreement Trafigura paid to the Government 95 billion FCFA, being “up to 73 billion francs CFA … to compensate the loss suffered by the Ivory Coast Government, including compensation to the Victims” and “up to 22 billion francs CFA … to reimburse the depollution costs incurred by the Ivory Coast government [under two contracts] relating to the treatment of the waste …”. In June or July 2007 the Government announced that it would pay 200,000 FCFA to any victim of the waste who had consulted a hospital or clinic, 2 million FCFA to anyone who had been hospitalised and 100 million FCFA each to the families of 15 people who died.

[39]For a few weeks in early 2007, as Mr Day told me in cross-examination, Leigh Day was instructed by the Ivorian Government to advise about how they might distribute compensation only to genuine victims and prevent it going to fraudsters. He said that he was much impressed by the efforts made by the Government in this regard: it demonstrated, he thought, that it “actually had strong parts”, as he put it, and this later influenced his assessment of the risk that compensation funds were vulnerable to government or public corruption.

[40]Mr Cissé concluded his email to Mr Day as follows:

“Your only friends should be the victims. Use the political arena only to obtain what you need. Be careful in this country. This is a crazy country that is led by thugs with an irresponsible opposition”

. Mr Day sent the email on to Lord Brennan QC, who was then instructed for the Trafigura Claimants. Ms Perry relied on Lord Brennan’s reply: he wrote that “Once the money goes into the [Ivory Coast] system, it is gone as far as the ordinary people are concerned”.

[41]In January 2007 Leigh Day employed Ms McGregor as a paralegal specifically to work on the Trafigura litigation. She was a French national and spoke fluent French. Between January 2007 and September 2009 she travelled to Ivory Coast 22 times on visits that typically might last two weeks. She described her initial role as being essentially to “liais[e] with clients and community representatives to add individuals with meritorious cases as claimants in the group action”. In the early months of 2007 Leigh Day engaged three or four teams, each of about three paralegals, to visit different areas for about ten days for this purpose. Ms McGregor was, as I infer from the evidence, typical of many of them in that she was a young lawyer with little or no litigation or other legal experience. There is no evidence that any other experienced solicitor assisted Mr Day with the Trafigura litigation.

[42]The “community representatives” provided a channel through which Leigh Day made and maintained contact with those who claimed to be victims of the toxic waste and became Trafigura Claimants. There were 43 separate associations of victims, and all had representatives. Mr Cissé was himself a representative for over a thousand claimants in the Djibril area. Some associations or communities had more than one person claiming to represent them.

[43]These arrangements caused Leigh Day problems. Some unauthorised persons approached victims, falsely claiming to act for Leigh Day. Mr Cissé reported in September 2007 that “Turf wars have … broken out in Abidjan, with reps battling over victims”. Further, Leigh Day came to hear that some representatives were levying unjustified charges, for example for Leigh Day’s questionnaires or for arranging a meeting. Between 24 September and 8 October 2007, Leigh Day visited the Ivory Coast to distribute letters to clients through the representatives, and Ms McGregor reported in an email to Mr Day dated 24 September 2007 that Mr Cissé had found representatives charging for them.

[44]Mr Gohourou was one of those about whom Mr Cissé expressed concerns of this kind. In February 2007 Mr Gohourou had become a representative for victims in the Vridi Canal area of Abidjan. Mr Koffi also represented victims from the same area, and he and Mr Gohourou together represented just over 1,800 claimants. (This was Mr Cissé’s evidence: in a Leigh Day briefing note of 12 November 2009 Mr Gohourou was said to represent about 1,500 claimants.)

[45]On 30 July 2007 Mr Cissé wrote to Ms McGregor that Mr Gohourou had been arrested. The circumstances of his arrest were not explored during the trial, but apparently he had been involved in demonstrations for victims of the Trafigura incident that had become violent.

[46]In an email to Ms McGregor dated 26 September 2007 Mr Cissé wrote of misconduct on the part of representatives, in particular that they were levying unwarranted charges. He said of the Vridi area “C’est la catastrophe”, and made similar complaints about representatives of other areas. Ms McGregor replied that she “still wonder[ed] whether if we can fire Claude Gohourou”, and that, while she did not know Mr Day’s intentions, she hoped to persuade him “that we should get rid of people that are a nuisance”. In a further email on 28 September 2007, she categorised two other representatives as “verreux”, and invited Mr Cissé’s view as to whether Mr Gohourou should be so categorised. In his reply Mr Cissé castigated Mr Gohourou for demanding unjustified charges, and writing that it was easily proved that “Vridi’s team is a bunch of dishonest people”. (It was suggested that Mr Cissé’s emails indicated that he regarded Mr Gohourou with condescension and amusement because he referred to him as a clown and a little guy - “un veritable rigolo” and “un veritable petit gars”– but, as I read them, they reflect genuine and serious concern about what Mr Gohourou was doing.)

[47]In an email of 1 October 2007 addressed to Mr Day and sent to Ms McGregor, Mr Gohourou complained about how Leigh Day had dealt with him and “his organisation”. He wrote that it had been formed before Leigh Day was involved with the Trafigura incident, that its work justified its membership fees of 7,000 FCFA: and that Leigh Day had no right to interfere. Mr Cissé responded that Mr Gohourou was engaged in a game of bluff. In an email of 9 October 2007 to Ms McGregor he included Vridi among six areas where in particular representatives imposed charges on victims.

[48]In an email dated 10 October 2007 Ms Fortier recommended that Leigh Day should stop working with Mr Gohourou and three other representatives, and Leigh Day suspended their association with them by letters sent on 23 October 2007. In a chart of representatives, apparently drawn up by Ms McGregor on 25 October 2007, Mr Gohourou was described as a “former rep” with whom Leigh Day had stopped working when they realised “quite how badly his association was extorting money from victims”. Similar criticisms were made of others who had been suspended. On 23 October 2007 Ms McGregor explained in an email to Ms Taieve Petrovitch-Hammard, who was taking over her responsibilities for liaison with the representatives, that it was intended to suspend them until Mr Day visited the Ivory Coast in December 2007. Ms McGregor’s evidence was that, while she, Ms Fortier and Mr Cissé wished to stop working with those representatives altogether, Mr Day preferred a more “pragmatic” approach.

[49]The suspended representatives continued to cause problems. They attended a representatives’ meeting on 26 October 2007, and their threats and demands apparently dominated it. In an email of 30 October 2007, a Ms Karen Adams of Leigh Day wrote to Ms Fortier, Ms Petrovitch and others that the “main problem reps” were Mr Gohourou, Mr Koffi and another called Cebastien Digbeu, who represented victims from the Koumassi area. She also reported that Mr Koffi claimed to represent “all the victims in Abidjan”: that is to say, that his association was a national, not merely a local, organisation.

[50]In the event, Mr Gohourou was re-instated in November 2007. On 7 November 2007 four Leigh Day employees were held captive in the Abobo Commune area of Abidjan for about 45 minutes: Mr Cissé, who was present, said that Mr Koffi was one of the captors, and that Mr Gohourou, though not present, was in communication with Mr Koffi during the incident. The aim was apparently to bring about a meeting between Mr Gohourou and Mr Day, and they met at the Sofitel Hotel on 13 November 2007. Mr Day also visited Vridi, and was said to have thought that the association there was well-run and that Mr Gohourou was held in high regard.

[51]However, soon there was more trouble: in an email to Ms McGregor of 19 November 2007 (only part of which is in evidence) Mr Cissé wrote of the Vridi representatives that he was “completely disgusted by their attitude” and that “[t]he blackmail operation that they are carrying out is completely revolting”. On the same day Ms McGregor reported to Mr Day that “The rep situation is developing nastily in Vridi”. Ms McGregor had asked another representative, Ms Marie-Louise Brou, to take over Mr Gohourou’s work, and Ms Brou had received death threats. There were reports that a boy sent by her to Mr Gohourou with a list of Vridi victims had been “kidnapped” and held hostage to Mr Gohourou’s demands. Ms McGregor also passed on a complaint from Mr Cissé that “certain reps are behaving in increasingly inappropriate and illegal ways”, and that Mr Koffi had threatened to prevent Leigh Day’s work unless his demands for payment were met.

[52]Ms McGregor told Mr Day that she agreed with Mr Cissé that “appeasement” of the representatives would not “do us any good”. Mr Day did not agree. In an email to Ms McGregor of 21 November 2007 Mr Gohourou denied that he had been involved in taking hostages, and said that he had taken measures to protect Leigh Day’s representatives. Leigh Day were unhappy about representatives demanding money from victims, but they also considered that the representatives were doing a good deal of work and sometimes incurred expenses. After the events of November 2007, an arrangement was reached whereby they were to receive 3% of any compensation that “their” claimants recovered. (When a victims’ group had more than one representative, it was for negotiation, according to Mr Cissé, how the 3% payment was to be shared, and sometimes it became a matter of dispute.) The English Solicitors Regulatory Authority sanctioned this. Some 38 representatives entered into such agreements: Mr Gohourou did so in January 2009. This, according to Ms McGregor, reduced the problem about the representatives levying other charges, but did not wholly overcome it.

[53]Leigh Day had more trouble with representatives in August 2008. They made various demands, including that their remuneration should be increased to 10% of compensation recovered. Apparently some decided to “go on strike” and to suspend recruiting claimants for Leigh Day until their demands were met. However, in an email of 17 August 2008 Mr Cissé reported that Mr Gohourou had agreed to start recruiting again, and he was one of the first representatives to withdraw from the “strike” action. Ms McGregor explained, and I accept, that the decision of Mr Gohourou and Mr Koffi to co-operate with Leigh Day in the Vridi region helped them to defeat the demands of other representatives.

[54]In August 2008 Mr Day sent counsel acting for the Trafigura Claimants, Mr Jay and Mr Richard Hermer QC, an email in which he passed on a report from Ms McGregor of a discussion with “a member of the Prime Minister’s private team”, who had asked “off the record” how much Leigh Day thought claimants might receive. When Ms McGregor replied that they thought that the recovery would be “£2,000 to £3,000 per person”, the assistant responded “good” because “if it was any more than this the Government might have to step in”; and that “it would be felt if the amounts were too much it would not be good for the balance of relations between the Government and the people”. Mr Day said that he was not sure what this meant, but observed that it was “an important angle we will need to be at least mindful of”. The assistant was also said to have asked how any settlement monies might be distributed. In response to Ms McGregor telling her that the claimants would open bank accounts, the assistant warned that Leigh Day should be careful “as the banks in [the Ivory Coast] are known to steal the money off the poorer people”, and said that Leigh Day “would be better taking cash over”. Mr Day observed that Leigh Day would “have to put some thinking into this as well”.

[55]Mr Day said in evidence that, as a result of what Ms McGregor was told, he went with her to meet a Government Minister - he believed one in the Interior Ministry under Mr Tagro - who assured them that “as it was a civil claim, the government would want little to do with it”. Mr Day said that this gave him “greater comfort that the government would not have any interest in what we were doing”.

[56]By the autumn of 2008 Leigh Day had come to think that the Trafigura litigation might well be settled rather than go to trial, and began to consider how any settlement sum might be distributed. In October 2008 in an email to the representatives Ms Petrovitch mentioned (albeit not specifically in relation to distributing a settlement sum) that the Trafigura Claimants would need to open bank accounts, and representatives expressed concern about the cost. Ms Petrovitch and a paralegal called Ms Michelle Chan began to explore how settlement funds might be paid to clients, and on 13 October 2008 Leigh Day had a meeting with Ecobank to discuss whether they might be able to organise payments to the “right” people and provide them with advice about money management. In the end, Leigh Day did not use Ecobank’s services.

[57]Ms Petrovitch decided that two paralegals, Ms Chan and a Ms Cecile Bere, an Ivorian national, should form what was called “Team Payments” to analyse the difficulties involved in distributing any settlement sum. In December 2008 Ms Chan produced a report entitled “Minimising the Pain of Payments: a Plan for Clients in Abidjan”. Ms Perry relied on this paragraph in its Executive Summary: “The influx of approximately 0.1% of Cote d’Ivoire’s GDP from one settlement will have a significant impact on a developing country still dealing with the aftermath of two civil wars. Based on Leigh Day’s work in Abidjan so far, and the outcome of Trafigura’s settlement with Cote d’Ivoire’s government, there is the possibility of corruption and dishonesty from various sources which put the clients’ stake in their compensation at risk. Also, the vast number of clients without a bank account determines a need to consider payment options that suit their needs. The report’s analysis of past cases in Kenya and South Africa indicate that without proper consideration of the clients’ needs, Leigh Day faces potential criticism from the media and other external actors if problems arise after clients receive compensation”.

[58]Ms Chan also wrote: “Unfortunately, the reality in Cote d’Ivoire is that clients are victims of both inadequate human rights protection and fulfilment from the State, and the unlawful activities of a multi-national corporation. This is seen in the corruption and maladministration of Trafigura’s government settlement, where most victims either did not receive compensation at all, due to errors on the ‘government list’, or did not receive part of their compensation because of the dishonest behaviour of government officials”.`

[59]In his witness statement Mr Day presented this analysis by Team Payment as part of Leigh Day’s work to find a satisfactory distribution scheme for any settlement sum and made no criticism of Ms Chan’s report. Indeed, he referred to, and appeared to concur with, this comment on it in October 2008 by Ms Jill Paterson of Leigh Day, who had had experience of distributing settlement funds in Kenya:

“This note is excellent”

. His oral evidence was very different: he described Ms Chan as a “very junior” paralegal, and her report as “like a student thesis”. He said that he was “slightly cross that they had wasted a lot of time on going nowhere particularly fast”. Although the report had been “ultimately” for him to consider and evaluate, he was unsure whether he had bothered to read it, although he thought that he had seen a slide show presentation based on it. I have already explained that I cannot accept Mr Day’s oral evidence about this. But in any case and for whatever reason, Mr Day spent little or no time considering what Ms Chan had written. Nor did others give much priority to doing so: in an email of 26 January 2009 Ms Marshall thanked Ms Chan for it, but explained that she had been too busy to consider it and suggested a meeting in February 2009. Whatever the quality of Ms Chan’s work, it was not used by Leigh Day.

[60]Whether or not he was dissatisfied with the report, Mr Day did not seek a further analysis of how settlement monies might best be distributed and the risks involved, either internally within Leigh Day or from a consultant. In my judgment, he probably thought that his experience of Africa generally and specifically of managing litigation and disputes involving Africa sufficiently equipped him to make his own assessment: he did not think that an analysis would tell him anything that he did not already know. As Mr Smith put it in his submissions, Leigh Day’s approach was more “organic” than methodical: Mr Day went ahead without a systematic analysis to identify and guard against potential risks.

[61]In about February 2009 Mr Day asked Ms McGregor and Ms Fortier, both paralegals and neither a qualified solicitor, to formulate a plan, and “to go off into Abidjan to start talking to the banks about what the route may be”. Mr Dayinstructed them to investigate using a European Bank with offices in Abidjan: in particular, PNB Paribas, Société Generale and Standard Chartered were mentioned. There is no evidence that Mr Day gave them more detailed instructions or guidance about how they should approach the banks or what they should cover in their discussions. I infer that they were left to identify for themselves the risks and the difficulties that Leigh Day might face in ensuring that settlement funds reached their clients.

[62]Standard Chartered were thought unsuitable to handle settlement funds because they had too few local branches, but from about the end of March 2009 Ms Fortier and Ms McGregor had meetings with SGBCI and BNP Paribas’s subsidiary, La Banque Internationale pour le Commerce et l’Industrie de la Cote d’Ivoire (“BICICI”). Ms Fortier had learned that Orange, the mobile phone service provider, and BNP Paribas had launched a service in West Africa for phone payments and money transfers, and she and Ms McGregor planned to discuss with banks whether these ideas might be developed to distribute monies.In preparation for the meetings they drew up an internal note of “issues to discuss”. It contemplated three possible methods of paying compensation: through bank accounts opened for claimants, by cheques, or in cash. The note included as an item for discussion, “Insurance if money is paid to the wrong person or if money disappears”. (It did not state how it might do so.)

[63]Ms McGregor was unimpressed by the representative of BICICI, who seemed to her uninterested in dealing with large numbers of impecunious customers, who might not open their own accounts. However, BICICI did suggest that the funds might be distributed through payment cards, an idea apparently similar to that eventually adopted. She was more impressed by the representative of SGBCI, Mr Jean-Luc Lecoq, whom she and Ms Fortier met on 26 March 2009. He too was reluctant to take on large numbers of such customers. As Ms McGregor saw it, this reflected so-called “logistical difficulties” and concerns about maintaining the bank’s standards of client care.

[64]Mr Day became more involved personally with the matter. On 31 March 2009 Ms Fortier sent him an email to bring him up to date, saying that “after speaking with the banks it appears that it will be necessary for [Leigh Day] to open a bank account in Abidjan”. She described SGBCI as apparently “very good and professional”, but observed that they might not be interested in view of the “challenge of organising such an operation” and that they would need a decision “in Paris” whether to become involved in a “quite political case”. The only comment in the email about the Ivorian judicial system was that compensation for child claimants would be managed by “the Ivorian judge” and that the judicial system might have difficulties in coping. As for BICICI, Ms Fortier said that they were not the “favourite”, but, given the limited options available, Leigh Day should “start working” with them as well as SGBCI.

[65]It apparently became known to the representatives, or at least to Mr Gohourou, that Leigh Day was exploring how settlement monies might be paid out. He wrote to them on 6 April 2009 to say that he “would not consent to the marginalization of reps of the victims” about “the choice of the bank institution for the compensation of victims if successful” or the “methods and conditions of payment”.

[66]On 29 May 2009 Mr Day, Ms McGregor and Mr Cissé had further meetings with SGBCI and BICICI. Mr Lecoq promised to report to his board and to let Leigh Day know within two weeks whether SGBCI agreed in principle to act. He told them that SGBCI would not open accounts for the claimants, and suggested instead that cash cards with a PIN might be used. (They would also pay claimants by cheque if they preferred.) According to Leigh Day’s note of the meeting, Mr Lecoq “indicated that [Leigh Day] would have to open an account at SGBCI and that as such [they] would be required to get authorisation from a ministry” (as Mr Day recalled, from the Treasury). Ms Perry sought to suggest that this showed likely government interest in a settlement fund that should have alerted Leigh Day to a risk of misappropriation. I reject that point: there is no reason to suppose that this was more than a routine requirement for foreigners wishing to open a bank account in the Ivory Coast.

[67]After the meetings of 29 May 2009 Ms McGregor wrote a Note recording that Leigh Day concluded that, of the two banks, “SGBCI came out by far on top”, because they appeared “more professional and able to offer a thought-through solution”. It described the payment system proposed by SGBCI. She wrote that there appeared to be two main risks of fraud: that a client might “claim twice” and receive more than his or her entitlement, and that third parties might claim a share in the fund. She noted how these risks could be met: i) To avoid genuine claimants being paid twice or overpaid, Leigh Day’s database of clients was to be consolidated to eliminate duplicate entries; only one card and PIN was to be provided to each client entered on the database; and claimants would not be able to withdraw funds immediately after receiving their cards and PINs. ii) To avoid impersonation, claimants were to be issued with identification cards; to collect their Prestis cards and PINs they would need their cards, their letters from Leigh Day and further identification evidence; funds would not be available immediately on cards and PINs being issued; and stolen cards could be cancelled. Ms McGregor concluded that the advantages to Leigh Day of the proposed system were that they remained largely in control of the payments, that they had “a clear point where [their] liability [was] released”, and that “various options were available to [them] to avoid fraud”. This last point referred to the measures that I have explained: Ms McGregor was concerned about fraudulent claims in the distribution process. She did not mention any risk that funds in the SGBCI account might be vulnerable to fraud, or otherwise insecure. I conclude that this did not occur to her.

[68]By 9 June 2009 Leigh Day and SGBCI had agreed in principle that any settlement funds should be distributed through SGBCI. Thereafter Leigh Day worked to develop their plans accordingly. Ms McGregor gave unchallenged evidence, which I accept, that they were working with “high level SGBCI staff” and were given no indication that “there was a risk to the monies once they were transferred to a Leigh Day account at their bank”.

[69]As I have said, in her email of 31 March 2009 Ms Fortier had said that she understood from the meetings with SGBCI and BICICI in March 2009 that Leigh Day would have to open an account in Abidjan. However, according to Mr Day’s evidence in cross-examination, in the period of “around March, April, May 2009” Leigh Day considered “all the various options”, and had discussions with Mr Jay and other counsel. He also said that in May 2009 his “primary goal” was to have an account in London and for claimants to have their own bank accounts, but this plan was abandoned because the Ivorian banks would not open individual accounts. Mr Day thought that it was decided in about May or June 2009 that any settlement monies should be distributed from an Ivory Coast bank account in that “it became increasingly coalesced around the point of having the accounts in the Ivory Coast” and “probably in about May/June … that became increasingly clear”. Mr Day apparently thought that counsel had been advised of this, but he was not sure that Leigh Day had further discussions with counsel once this was determined.

[70]The documents do not reflect any continuing consideration or discussions of this kind. There is no evidence, and Mr Day did not suggest, that Leigh Day approached London banks for such discussions. There is no document indicating discussions with counsel, and Mr Day did not refer to them in his witness statement or before he was cross-examined. Mr Jay did not refer to such discussions in his evidence: he simply said that the “solution devised by Martyn Day … was subject to independent consideration by me”. Before Mr Day was cross-examined, all the material indicated that after Ms Fortier’s email of 31 March 2009 everyone at Leigh Day assumed that any settlement sum would be distributed from an account that Leigh Day would open in the Ivory Coast. I reject Mr Day’s evidence about continuing discussions and consideration within Leigh Day about different options, including the possibility of an account in London. Further, whatever “options” were ever considered by them and whatever internal discussions Leigh Day had, they never assessed either of the possibilities that Mr Isaacs has suggested in his report, which I explain later (at para 78).

[71]On 17 August 2009 Mr Cissé sent to Ms Fortier and Mr Tim Cooke-Hurle, another paralegal with Leigh Day, an email with the subject heading “News of Claude, the chairman”. He attached a newspaper article published that day by an Ivorian national newspaper, the headline of which was (in translation) “An agent of the Treasury and a Chairman of the Collectives Summonsed to the Gendarmerie”. It reported that following complaints from victims of toxic waste Mr Gohourou and an agent of the Treasury of Abidjan South had received summonses to answer questions before a judicial inquiry. The newspaper carried photographs of the summonses to both men. Mr Gohourou was described as the “President of the National Co-ordination of the Victims of the Toxic Waste”. The article was about the compensation for victims paid by Trafigura in February 2007, and it said (according to the translation before me):

“The complaint indicates that the victims of the toxic waste are from now on compensated at the rate of 100,000 fcfa instead of the 200,000 fcfa decided and planned by the Government. This new rate, inferior by half to the one set by the State, is paid by Mr Danon in complicity with Mr Claude Ziallo Gohourou. Other complaints reveal that it is through the use of false documents that Mr Claude Gohourou and colleagues derive the totality of such compensation (200,000 fcfa) and then pay only half to the beneficiaries. Serious enough, these facts were brought before the prosecutors by the disillusioned victims.”

It concluded that the prosecuting authorities had asked “the Commander of the Research Brigade of the Gendarmerie to conduct a full inquiry into the matter, which may lead to much ink and saliva”.

[72]Mr Cooke-Hurle sent Mr Cissé’s email and the attached article to Mr Day, with the observation, “This newspaper article said that Vridi Claude has been hauled in front of the courts in Abidjan for organising a scam with a Treasury official to get victims’ payments from the government scheme, but retain half the money for themselves. I worry that this is the kind of thing the defendants are hoping for, and wondered whether we should do anything about it”. In cross-examination Mr Day said that the article prompted two concerns. One related to the litigation: whether Mr Gohourou had “infiltrated” the Trafigura Claimant group and introduced spurious claimants. Here one particular worry was that one of the lead claimants in the imminent trial was from the Vridi group. Mr Day expressed the other concern as follows:

“whether [Mr Gohourou] could in some way individually bring about some sort of fraud for individual claims in relation to the scheme that had put together”

. I take it that he meant that he was concerned that, if any settlement sum was to be distributed, Mr Gohourou might exploit the proposed card system to make a false claim, or false claims, for a share or shares.

[73]Mr Day responded to Mr Cooke-Hurle that they and Ms Fortier should discuss the article the next day. He told me in cross-examination that he discussed his two concerns at this internal meeting, and also that the report was discussed with counsel in consultation. There was a consultation about the Trafigura litigation on 24 August 2009, but there is no credible evidence that the discussion extended beyond the impact that the article might have on the litigation, and I conclude that it probably did not. Although Mr Day said that his firm’s invariable practice was to make attendance notes of consultations, no relevant document has been disclosed, despite a specific search made during the trial. This is odd, but I reject any suggestion of impropriety.

[74]Leigh Day must have understood how serious the allegations about Mr Gohourou were. In an email of 25 August 2009 Ms Marshall described him as “the rep potentially facing charges of fraud”. Nevertheless, there is no evidence that the article prompted Leigh Day to have any concern that a settlement fund held by SGBCI might be vulnerable to fraud on the part of Mr Gohourou, and, as I understand Mr Day’s evidence, he accepted that this did not occur to him. Mr Day offered this explanation in cross-examination why Leigh Day were not much worried by this development, and did not consider with counsel whether the system for distributing any settlement monies should be reviewed in light of the report: he understood that the allegations were that individuals had been defrauded, and saw in the report no suggestion of “some sort of mega wide-based scheme”.

[75]This explanation is consistent with subsequent emails. On 18 August 2009 Ms Fortier wrote that Mr Gohourou had started “to work for the Government Treasury on 2 April 2009” and that Leigh Day had “already stopped registration at that time”. This must, I think, have been directed to answer any suggestion that after his association with the Government Mr Gohourou had somehow introduced fraudulent claimants into Leigh Day’s group. Mr Day’s response was that, “I do not think that there is anything else that we can or should do”.

[76]I conclude that the attention of Mr Day and others at Leigh Day was focussed on the trial in the Trafigura litigation, which was less than two months away, and when they read the article they thought only about whether it might be exploited forensically by Trafigura. When these concerns were allayed, they gave it no further thought: they did not even contact Mr Cissé to ask what lay behind it. Thus, they never considered whether it had any implications for their plans for distributing settlement funds. Nor did Mr Day notice, or pay any attention to, Mr Gohourou’s reported claim to lead a national association for victims.

Leigh Day’s arrangements for the settlement sum

[77]The claimant did not criticise the plans for actually distributing the settlement sum, or the arrangements for preventing monies from being diverted or misappropriated in the course of distribution. She was right not to do so: Leigh Day had carefully considered how a settlement fund might be distributed, and the scheme of Prestis cards was a proper one. Ms Perry argued, however, that this scheme did not require that the settlement sum be paid into and held in an Ivorian account. Her complaints are that: i) Leigh Day should not in the first place have had the whole settlement sum paid into a bank account in the Ivory Coast pending distribution; and ii) Even if all the money was properly paid into the account there initially, Leigh Day should have transferred it out of the Ivory Coast at some time between 11 and 22 October 2009 and before the account was “frozen”.

[78]The claimant identified two ways of protecting the settlement sum pending distribution, both of which would still have allowed claimants to be paid their share by using Prestis-type cards. Both would have involved Trafigura paying the settlement sum into an account in Leigh Day’s name that was in France or some other country outside the Ivory Coast. Then either: i) The cards could have drawn directly on that account, or ii) Leigh Day might have set up in addition an Ivorian account with SGBCI (or with some other bank in the Ivory Coast) and transferred funds into it in tranches. Mr Isaacs suggested tranches of the equivalent to some £1 million. In this judgment I shall refer to these ways of distribution as the “overseas account” method and the “tranches” method respectively. It was not suggested that an order of the Ivorian Courts would have been effective against funds in an account outside the Ivory Coast or funds so held would have been vulnerable to corrupt court orders.

[79]I conclude that Leigh Day could have had the settlement sum paid into an account outside the Ivory Coast if they had so wished: i) There is no reason to think that Trafigura would have been unwilling to pay the settlement sum into an account outside the Ivory Coast, and I conclude that they would have agreed to do so. Their concern was that the payment should unconditionally and undisputedly settle the claims against them and discharge all their potential obligations to the Trafigura Claimants. This is obvious, but Mr Glasgow’s evidence so confirmed. ii) It was not suggested that the required majority of the Trafigura Claimants would not have assented to settlement on that basis. It would have been no less attractive than the terms to which they did agree. iii) Moreover, as Mr Isaacs explained, the Ivorian currency is tied to the Euro, and so the value of the fund would not have been exposed to exchange rate movements if held in a Euros in France or elsewhere.

[80]Mr Isaacs’ unchallenged evidence was that arrangements of this kind could have been made. He acknowledged that additional costs would have been incurred if the Prestis-type cards drew directly on an overseas account. A French bank would have had to take out a Bank Identification Number (or “BIN”) from a card provider entitled to issue cards in the Ivory Coast, such as Visa or Mastercard, and would have needed to satisfy concerns about money laundering and others matters, but Mr Isaacs considered that this could have been done, albeit at some expense. Therefore Mr Isaacs recognised that the additional costs would have been what he described as “significant”, but he thought that, through negotiation, they could have been kept at “low levels”. He concluded, “The option of depositing funds outside the Ivory Coast and issuing cards that could be used in the Ivory Coast could therefore have been utilised but it would have involved increased costs for the Claimants”.

[81]Mr Isaacs also gave evidence that, if Leigh Day had remitted the settlement sum in tranches into an Ivorian account in their name, any additional costs would have been modest: for example, if it had been transferred in 30 tranches, they would have been less than £1,000. Mr Smith objected that this arrangement would not have safeguarded the settlement fund from being frozen and seized through fraudulent claims and judicial corruption, as in fact occurred. He had understood that Mr Isaacs proposed that the Ivorian account should hold (say) £1 million in addition to all the amounts allocated to the Prestis cards; and thus as soon as the cards were “loaded” with credit, all or almost all of the settlement sum would be allocated to cards or held on Leigh Day’s Ivorian account. Since those amounts were allocated to the cards only by way of the internal book entries of SGBCI, they would have been subject to any order of the Ivorian courts just as money (or other unallocated money) in Leigh Day’s name was. However, Mr Smith, I think, misunderstood Mr Isaacs’ suggestion: Mr Isaacs envisaged that a further tranche should be transferred to Leigh Day’s Ivorian account only when money allocated to cards had been spent and the total of allocated and unallocated funds justified a further transfer, and until then the settlement sum should be held outside the Ivory Coast. In other words, the tranches method contemplated that money would be “dribbled” into the Ivory Coast.

Breach of duty

[82]There is unsurprisingly no dispute that Leigh Day owed a duty of care to Ms Agouman and the other Trafigura Claimants for whom they acted. Mr Smith fairly observes that this is perhaps an unusual claim of solicitors’ negligence: it does not concern legal advice or the actual conduct of litigation, but an assessment of the political and other risks to which the settlement sum was vulnerable. Generally the Courts are wary about holding lawyers to blame for what are essentially business decisions: they are typically for clients to assess, sometimes with other professional advice: Jackson & Powell on Professional Liability, (7th Ed, 2012), para 11-177. In this case, the diverse client group was not in a position to do so or to give Leigh Day instructions about the proposed terms of settlement, and Leigh Day assumed responsibility for managing the settlement monies and managing the risks involved in doing so. Accordingly, it is not disputed that, in the circumstances of this case, Leigh Day were under a duty to exercise reasonable skill and care to make safe arrangements for receiving the settlement sum, for safeguarding it pending distribution and for distributing it to the proper recipients.

[83]As for the standard against which Leigh Day should be judged, solicitors are generally judged by the standard of a reasonably competent practitioner specialising in whatever field of law the defendant holds himself out as a specialist: see Jackson & Powell, loc cit, para 11-101. Mr Smith accepted that here the standard is that of a reasonably competent firm of solicitors with a department specialising in group litigation with an international element. I would gloss that formulation and apply the standard of a reasonably competent firm with a department specialising in group litigation for unsophisticated clients arising from events in a poor and unstable African country. Mr Day’s evidence made clear that he and his firm had experience and professed expertise, not only in legal matters but in organising such interest groups in different African countries: as Bingham L J said in Eckersley v Binnie & Partners, (1998) 18 Con L R 1, “The law requires of a professional man that he live up in practice to the standard of the ordinary skilled man exercising and professing to have his special professional skill”.

[84]Mr Smith submitted that, in assessing whether Leigh Day fell short of the required standard, I must judge them by what a respectable body of practitioners would regard as competence. I accept that this is the proper approach, but have not found it an easy test to apply to the facts of the case. In Moy v Pettman Smith,

[2005] UKHL 7

, another solicitor’s negligence case, Lord Hope said this (at para 19):

“Where a claim is brought for professional negligence the court will usually expect to be provided with some evidence to enable it to assess whether the relevant standard of care has been departed from. No such evidence was adduced in this case. Judges, recalling how things were when they were in practice, no doubt feel confident that they can do this for themselves without evidence. But judges need to be careful lest the decision in the case depends on the standard they would set for themselves. If this were to happen, it would vary from judge to judge and become arbitrary.”

He went on to emphasise the importance of making an assessment in light of all the evidence.

[85]Similarly in this case, the parties followed the course that is conventional in solicitor’s negligence cases and did not adduce expert evidence about the standard of care, although, as I have said, the question is not about legal practice and not one where the judge could be expected to have relevant experience from practising on which to draw: certainly I claim no experience that assists me to assess the risk to funds held in African countries: nor is it a question (like conveyancing practice: see Brown v Gould Swayne, [1996] 1 PNLR 130) where textbooks can be consulted.

[86]This highlights the twin dangers(i) of the court applying its own subjective standards, rather than objectively ascertained ones, and

(ii) of viewing matters with the benefit of hindsight. I have well in mind the oft-cited observation of Megarry J in Duchess of Argyll v Beuselink,

[1972] 2 Lloyd’s Rep 172

, 185, which Mr Smith cited:

“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.”

[87]Mr Smith was able to support this point by reference to the contemporaneous views and responses of others when Leigh Day arranged for the settlement sum to be paid into an Ivorian account. No one, he submitted, apparently thought that it would be risky to hold money in a bank account in the Ivory Coast, or warned Leigh Day that it would be. He went through those who, he said, might have been expected to have acted differently or said something if it was inadvisable to do so.

[88]First, Trafigura contemplated having money paid into an Ivorian account in that under the settlement agreement they were so to receive any “Surplus” if Trafigura Claimants did not accept the agreement. I am not impressed by this point, which was not raised until Mr Smith’s final submissions and not explored in the evidence. I do not know whether Trafigura could in these circumstances have transferred funds from the Ivory Coast, but even if exchange controls did not prevent this, Trafigura might well have thought that to do so would be impolitic and damaging to their (no doubt still delicate) relations with the Ivory Coast authorities and elsewhere in West Africa.

[89]Leigh Day had dealings in the Ivory Coast with the following: i) Ms McGregor said that Leigh Day had “numerous links at various levels with the legal profession in Abidjan, including some advising [them] on the legal technicalities of the payout”, and that they instructed Abidjan lawyers who were “able and professional”. She said that she did not recall any of them telling Leigh Day that “compensation monies were at risk in an Abidjani account”. She also said that Leigh Day “did not get a sense that their practice depended wholly on the whims of a corrupt judiciary”, and that there was “a reasonably functioning legal and judicial system”. ii) As I have said, Leigh Day discussed with both SGBCI and BICICI their requirements and the dangers of fraud in the Ivory Coast. Neither bank identified to them a risk that funds might be seized through court proceedings. iii) Nor was this risk identified by Government officials with whom Leigh Day dealt. For example, the assistant of the Prime Minister referred at her meeting with Ms McGregor to Ivorian banks “steal[ing] money off the poorer people”, but apparently this referred to low level bank employees being dishonest, but there was no warning about large-scale fraud. iv) None of the representatives alerted Leigh Day to this risk, although their 3% commission was to be paid from the settlement sum and therefore they would have had an interest in it being kept safe.

[90]I accept that Leigh Day were not warned from these contacts of potential risks in the arrangements that they were making, but I am not much impressed by this point. i) The evidence does not explain what instructions were given to local lawyers, or what advice they gave. The documents before the court do not include any instructions or notes of their advice. However, the implication of KSK’s response about Mr Cheick’s interest in the settlement sum (see para 30 above) is that they considered that the Ivorian courts were susceptible to outside pressure or influence, and I infer that they would have so advised Leigh Day if they had been asked about whether the funds in the account were safe. KSK themselves apparently exerted influence on the President of the Supreme Court through Mr Tagro, or at least sought to do so. ii) The banks would not be likely to advise prospective customers that deposits with them were not safe. I accept that, as Mr Smith observed, SGBCI’s Head Office was consulted before they agreed to open Leigh Day’s account, but I would suppose that they were concerned about the Bank’s potential exposure, and I can well understand that the Bank would have considered itself adequately protected if it acted in accordance with orders of the local Courts. iii) I would not expect Government Officials to advise Leigh Day that the country had a weak rule of law or an ineffective or corrupt judiciary. iv) It is unclear from the evidence whether the representatives were consulted about arrangements for distributing the settlement sum or what information they were given about them.

[91]What of other lawyers in England? Mr Smith said that Mr Hermer and Mr Joe Smouha QC, who were instructed with Mr Jay for the Trafigura Claimants, had not warned Leigh Day of any risk in providing in the settlement agreement for payment into an Ivorian account. But there is no evidence that they were instructed to consider this, and if so what instructions they were given or what they knew about the risk of holding funds in the Ivory Coast. The question did not relate directly to the conduct of the litigation and, on the face of it, did not involve English law. I cannot assume that it fell within counsel’s remit or expertise.

[92]Next, other partners at Leigh Day: Mr Smith relied on the fact that, when “Team Payment” looked into how monies might be distributed, they drew on the experience of Mr Richard Meehan, who had been involved in litigation concerning South Africa, and Ms Jill Paterson, who had experience of Kenyan litigation. However, the evidence about this is very general, and there is no evidence that either was consulted in any meaningful way or that anything that they said had any bearing on Leigh Day’s decisions.

[93]I therefore cannot give much weight to the fact that none of these people criticised Leigh Day’s plans or warned that they were ill-advised. However, Mr Smith also relies on the approval of the settlement agreement given by MacDuff J on the basis of an advice by Mr Jay recommending it. I have set out at paragraphs 21 and 22 Mr. Jay’s evidence about this, what he wrote in his advice and his exchange with MacDuff J. I accept that these matters lend some modest support to Mr. Smith’s arguments, but the exchange must be read in its context, and so read I do not consider it to be as telling as Mr Smith submitted: i) The focus of the exchange was about how settlement monies paid to infant claimants might be protected. Mr Jay explained in his opinion why it was proposed that settlement monies should be paid to the litigation friends of children, and he told MacDuff J that the barristers had “agonised” about that. Neither Mr Jay nor MacDuff J was referring to the machinery for distribution of the settlement sum more generally, still less to the arrangements for handling the sum pending distribution. The barristers had not agonised over that: Leigh Day had decided to have the settlement sum paid into an Ivorian bank account some months before, at about the end of March 2009, as I conclude, and even according to Mr Day’s evidence by May or June 2009. ii) Even if the exchange between MacDuff J and Mr Jay was not only about the protection of the children’s funds once that had been paid, it was only said that the arrangement for distribution was the best that had occurred to the lawyers. Mr Isaacs’ evidence shows that other arrangements were possible, and they might well not have occurred to those without relevant experience of international money transfers and banking procedures in this part of the world. The views of Mr Jay and MacDuff J were not about whether Leigh Day should have been better informed, or made themselves better informed, before committing their clients to the arrangement. iii) The assessment of how safe funds would be in an Ivorian bank was not a legal question, but essentially factual. It depended upon information about the Ivory Coast. There is no evidence or reason to suppose that MacDuff J had any particular information, experience or expertise in that regard. There is no evidence about what instructions Mr. Jay was given. His evidence was that before his involvement in the litigation he had visited some African countries, but his personal knowledge of the Ivory Coast rested on an impression from visits in May and September 2009.

[94]Mr Day accepted that neither of Mr Isaacs’ proposals were suggested to him or occurred to him at the time, and there is no evidence that anyone at Leigh Day thought about them. I conclude that they did not. (Indeed, at one point in his evidence Mr Day said that nobody at Leigh Day considered having the settlement sum in a bank account outside the Ivory Coast, but his evidence was inconsistent about this.) Mr Day and others concentrated on avoiding (or reducing) the risk of low-level and local fraud. Mr Day said that “there was nothing to make [him] think that there was any risk of what actually happened”, by which I take him to mean that it did not occur to him that the fund as a whole would be targeted by fraud. Certainly they accept that it did not occur to them that the settlement sum might be vulnerable to fraudulent claims or corrupt judicial decisions while it was held in a bank account there, but contend that they were not thereby negligent.

[95]Why was this? Mr Smith submitted that, while it can now be seen that the fund was vulnerable to a fraudulent claim by Mr Gohourou upheld by corrupt judicial decisions, Leigh Day could not have been expected to have foreseen that risk and avoided it. I do not think that it is as easy as that. I have considered why others might understandably not have appreciated the risks or warned Leigh Day of them. In my judgment this does not necessarily demonstrate that criticism of Leigh Day is based on impermissible hindsight.

[96]It was obvious, and Leigh Day appreciated, that, if the Trafigura litigation was settled, that they would need to make careful and safe arrangements for the settlement sum to reach the proper recipients. Given this and given the amount of the settlement sum, Leigh Day should have undertaken a thorough and methodical assessment of the risks and how they could be avoided. In the autumn of 2008 Leigh Day had arranged for “Team Payment” to assess and to report on what would be a secure and efficient payment system, but Ms Chan and Ms Bere did not have the necessary knowledge or experience for this task. Whether or not this was Mr Day’s view of “Team Payment” at the time, Leigh Day simply did not commission a report from someone competent to produce a useful analysis. If Leigh Day did not themselves have such expertise, they should have taken outside advice from a consultant with banking or international finance expertise of comparable African countries. (On 19 September 2009 Mr Cooke-Hurle suggested just this: he sent an email to Ms Marshall, which was copied to Mr Day and Ms Fortier,asking “Is it worth getting banking consultants to review our payment procedure? Would this help re insurance if we get defrauded?” Ms Marshallreplied that the question of insurance had been discussed. The evidence does not explain what these discussions were. There is no complaint that Leigh Day should have taken out insurance to protect the settlement sum against fraud. As Mr Day explained, and I accept, the enquiry was most likely about insurance against individual cards or PINs being dishonestly used.)

[97]I do not say that any competent solicitor would have sought advice from an outside consultant. I accept that Leigh Day as a firm and Mr Day specifically had, as he told me, “considerable experience” and that they had “successfully acted on a number of occasions for large groups of financially unsophisticated clients in developing countries”. Possibly Mr Day had the necessary knowledge and experience to undertake an adequately thorough and appropriately rigorous analysis of the risks involved in managing settlement monies. As I shall explain, Leigh Day had available reports from respected sources about corruption in the Ivory Coast, but the information was not drawn together and assessed. It might be, therefore, that had Mr Day himself undertaken proper rigorous analysis of the risks or had the task been assigned to another solicitor with appropriate experience and competence, they could not be criticised.

[98]Instead Mr Day asked Ms McGregor and Ms Fortier to develop a plan, and their scheme was adopted by Leigh Day. However, as I conclude, they had no relevant previous experience in dealing with matters of this kind: the job was too important to be left to two inexperienced paralegals. No documents and no other evidence suggest that they were given guidance about how they should approach it, and I conclude that they were given none. Nor do I accept that they were sufficiently closely supervised to compensate for their inexperience: I have concluded that it had been decided, or perhaps rather simply assumed, that settlement monies would be held in the Ivory Coast by the end of March 2009 and before Mr Day had any significant part in the planning, and this decision was never revisited or assessed by him or anyone with suitable experience.

[99]But that in itself does not mean that Leigh Day were in breach of duty to the claimant. At least in cases of professional negligence, the law is concerned with whether the defendant acted consistently with the requisite standard, not with how (s)he came so to act or the thought-processes that led to the act or omission of which the claimant complains. This is clear from the judgments of the majority of the Court of Appeal in Adams v Rhymney Valley DC,

[2000] EWCA 3035

: see esp paras 42 and 43 per Sir Christopher Staughton and paras 59 and 61 per Morritt LJ. The test is that articulated by McNair J in Bolam v Friern Hospital Management Committee,

[1957] 1 WLR 582

(which, though stated in a medical negligence case, applies to all who exercise a particular skill or calling: Gold v Haringey HA,

[1988] QB 481

,489). In the Adams case Sir Christopher Staughton said (at para 39):

“McNair J, in Bolam’s case (at p.58) first cited Lord President Clyde in Hunter v Hanley (1955) SLT 231: ‘In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care’. McNair J. then said: ‘I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view’. McNair J. then said: 100. Sir Christopher continued (at para 40): “There are of course, circumstances in which a practice commonly adopted by some professional people may nevertheless be regarded as negligent. As Lord Browne-Wilkinson said in Bolitho v City of Hackney Health Authority (1988) AC 232 at p. 243, the Bolam doctrine does not apply if the body of opinion is not responsible. Equally, it does not apply if the body of opinion, even though universally held, is not reasonable. The doctrine is not a licence for professionals to take obvious risks which can be guarded against”

. As Ms Perry said, this is so even if the risk is unlikely to materialise: in Overseas Tankship (U.K.) Ltd v. Miller Steamship Co. Pty (The “Wagon Mound” No 2), [1967] 2 A.C. 617, 642, Lord Reid said, “A reasonable man would only neglect [a risk of small magnitude] if he had some valid reason for doing so, e.g., that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it".

[100]I must therefore consider whether Leigh Day could properly have decided to have the settlement sum all held in an Ivorian account pending distribution in view of their knowledge and information available to them. I next draw together the evidence about this.

[101]First, the evidence about the information of the economic position of the Ivory Coast that was available to Mr Day and others at Leigh Day. They knew, of course, how poor and highly indebted the country was. The settlement sum of some £30 million must be seen by reference to its local value, and two illustrations of this suffice: i) In an email of 9 October 2007 to Ms McGregor Mr Cissé referred to labourers in Vridi barely earning FCFA 30,000 per month. ii) Similarly, in his Opinion supporting the application that the Court approve the settlement, Mr Jay wrote that, for the vast majority of the Trafigura Claimants, “slightly under £1,000 a head is an enormous sum of money (a farmer in Djibi village earns £1/day)”. In a draft witness statement in the Trafigura litigation, which was not in fact filed or served but which Mr Day referred to in his evidence in these proceedings, he described the Ivory coast as a “very poor country”, and acknowledged that, when it was reported that the government might pay compensation from the Trafigura’s payment of February 2007, some used forged identification documents to make a claim.

[102]Leigh Day also knew that the country was volatile and politically unstable. In February 2009 Ms Chan described the Ivory Coast as “a fragile developing country” considered to have a “weak and unstable” economy” and a “weak rule of law”. This was also reflected in Mr Cissé’s email to Mr Day of February 2007. Indeed, according to a report of a Special Rapporteur to the Pan-African Parliament, which Mr Cooke-Hurle passed on to Mr Day, Trafigura chose to dump the waste in the Ivory Coast because they knew that the country was “malfunctioning”. Whether or not this was so, it reflects how the country was perceived.

[103]Mr Day was well aware that there was corruption in the Ivory Coast, including corruption among public officials. It was specifically considered in Ms Chan’s report. In his draft witness statement for the Trafigura litigation Mr Day wrote “Having worked in Africa on a number of different cases I am fully aware that corruption is rife in much of the continent and that retaining a sceptical eye is a crucial part of my role when it comes to accepting potential victims into our cohort”. His evidence in this case was that he did some “reading around corruption in the Ivory Coast” and that it was “very similar to some other countries around the end of the Transparency International Scale” In reports of Transparency International’s Corruptions Perception Indices, the Ivory Coast was among the nations where corruption was seen to be most prevalent. (The indices in evidence were for the years 2005 and 2006, but it was not suggested that the position materially changed over the relevant period.)

[104]Mr Day said that before October 2009 his only direct experience of corruption there was “at a local level, on a relatively small scale”. However, he did not say, and I cannot accept, that he thought that the country was not at risk of corruption among more senior figures of authority and on a larger scale. He wrote, “We are wary in case the President makes a deal which puts millions in his pocket and leaves the injured with little or nothing”.

[105]Other material available to Leigh Day identified that the court system and the rule of law were weak in the Ivory Coast, and they knew that the judges might be corrupt. I refer, by way of example, to the World Bank’s Africa Competitiveness Report, 2009. (There is no evidence about when in 2009 the report was published, but the source of the relevant information in it was surveys of the World Economic Forum in 2007 and 2008. It was not suggested that the thrust of the relevant information would not have been available at the relevant time.) In terms of its judicial independence (whether the judiciary in the country was “independent from political influences of members of the government, citizens or firms”) the Ivory Coast was placed in 132nd position of 134 countries. Asked about his perception of the risk of judicial corruption, Mr Day said that he wasworried about judicial corruption, as well as about other corruption elsewhere, and that it was “clear that where you have a corrupt country there will be an element of corruption within the judiciary” because “judicial corruption tends to go with wider corruption within the country”. Indeed, as I have said, in early 2010 Leigh Day themselves, through their Ivory Coast lawyers, sought to put pressure on the President of the Supreme Court through the Interior Ministry.

[106]Further, Leigh Day knew of reports that money paid by Trafigura in February 2007 to compensate victims had not reached them, and that this had been attributed to fraud and corruption. Despite what was written in Ms Chan’s report (see para 57above), Mr Day said in cross-examination that he was unaware that difficulties in distributing the February 2007 settlement funds were at all attributable to dishonesty on the part of government officials, but if he did not know this, he should have done. In an email of 19 March 2009 he wrote to counsel, Mr Jay and Mr Hermer, that “the possibility for fraud if we win the case is enormous. We know the Government had only ever paid out 67% of the people entitled because of these sorts of difficulties”. He must have realised that the position would be the same if they achieved a satisfactory settlement of it.

[107]Leigh Day also knew, if only from Ms McGregor’s meeting in August 2008 with the Prime Minister’s assistant, that those in government might be interested in a settlement sum recovered from Trafigura. As I have said, Mr Day explained that his concerns were ameliorated to some degree by his subsequent conversation with the Government Minister, and his impressions from advising the Government about the settlement of February 2007. But I cannot believe that this could reasonably have provided him with much comfort, or that it did so. On 7 September 2009, when about to conclude the settlement and travel to the Ivory Coast to present it to the Trafigura Claimants, he wrote in an email to Ms Frances Swain, a colleague at Leigh Day, that the Interior Minister “is sniffing around, which is a worry as we think he is pretty corrupt”.

[108]What information was available to Leigh Day about Mr Gohourou? Like other representatives, he was clearly aiming to exploit the Trafigura incident and to benefit from it financially. Leigh Day had known since 2007 that he was capable of being ruthless, violent and determined to this end, for example, when organising victims of the toxic waste. They also knew that: i) Mr Gohourou and his associate, Mr Koffi, had claimed to lead a national association or organisation of victims. The newspaper report of August 2009, indeed its headline,madeMr Gohourou’s own claim to such a position. Mr Koffi made the claim in October 2007, and he threatened Mr Day (to use the words of a contemporaneous email of Ms Adams) that he “could quite easily make it impossible for [Leigh Day] to work in Abidjan if [they] didn’t agree to all victims becoming part of his organisation and to him receiving a percentage of the damages for every case”.In his email of 6 April 2009 Mr Gohourou had asserted that he was interested in “defending the victims’ interests on a national scale as well as internationally”. As Mr Day was aware, others had made similar claims: he said in cross-examination that it was “a very common sort of theme” to claim to represent victims of the Trafigura incident on a national level. ii) Mr Gohourou had established government connections, and was said by Ms Fortier in her email of 18 August 2009 to have started to work for the Government on 2 April 2009. Mr Day said in cross-examination that he did not recall that Mr Gohourou worked for the Government, and questioned whether Ms Fortier had mis-stated the position. I see no good reason to think that she did, but in any case he clearly had established close Government connections. iii) Mr Gohourou was interested to know how any payment would be made to victims, and what bank would be used by Leigh Day for that purpose.

[109]In view of these considerations, all of which were known to Leigh Day or at the least should have been known to them, in my judgment Leigh Day should have recognised that, if a large fund, certainly one of as much as the settlement sum, was held in the Ivory Coast, there was a real risk that a dishonest claim to it might be made by Mr Gohourou, or indeed by Mr Koffi or another soi-disant national leader of victims of the Trafigura incident. They should also have recognised that they might not be able to protect a fund held in an account in the Ivory Coast without a robust legal system and a judicial system of reliable integrity and independence; and they knew that they could not be confident of either.

[110]According to Mr Day, Leigh Day considered it safe to have the settlement sum paid into an account at SGBCI because the standing of its parent, Société Generale, was “as good a guarantee as we could have that reputationally the international bank would try to ensure that nothing happened to this money”. It might well be that the Bank would try to do so: indeed, it would appear that Leigh Day were able to exert pressure to delay the Bank in complying with the order of the Court of Appeal to transfer the monies to CNVDT. The claimant does not criticise Leigh Day’s choice of SGBCI rather than another bank in the Ivory Coast. Her criticism is that it should not all have been held in any account in the country. In my judgment, that criticism is justified, and therefore in this regard Leigh Day fell below the requisite standard of care.

[111]I add that I would take this view even if the mandate governing the account had included provisions for a governing law other than Ivorian law or a jurisdiction agreement to resolve disputes in the courts of another country (such as the courts of France or this country). Provisions of this kind are, of course, very frequently included by experienced businessmen and their lawyers seeking to reduce the risks of international business. As I have said, there is no evidence that Leigh Day included such provisions in their contract with SGBCI or sought to do so: I infer that they did not, because otherwise they would have known this when the question arose during the trial. But however this may be, such measures would have provided only limited protection: the value of the asset representing the fruits of the Trafigura litigation, the credit balance in the account in Leigh Day’s name with SGBCI or, as English law would characterise it, the chose in action against SGBCI, depended on them being able to enforce it against SGBCI, an entity answerable to the jurisdiction of the Ivorian courts. This could have been avoided had Leigh Day adopted one of the courses suggested by Mr Isaacs, and in my judgment they should have done so and their failure to do so constituted a breach of their duty to the claimant.

[112]For very similar reasons I am persuaded that Leigh Day were also at fault in not seeking to transfer the settlement sum from the account and from the Ivory Coast after the events of October 2009 and Mr Gohouorou had asserted his claim to represent CNVDT and shown interest in the settlement sum. If they had previously failed to appreciate that he might assert a claim to the funds purporting to represent the victims or CNVDT, this was another indication of the risk and, taken with other information available to Leigh Day, should have been recognised as such. Mr Day’s evidence wasthat it did not cross his mind that these events indicated that the settlement sum might be subject to an application to the Courts: as he saw it, the trouble was only about what representatives should be paid. However, he also accepted that he somehow failed to appreciate that Mr Gohourou was claiming to represent victims nationally, although that was clear from Mr Gohourou’s letter of 13 October 2009. He should have noticed that and been concerned that Mr Gohourou might claim that he was entitled to deal with the settlement monies of those whom he represented and so with the settlement sum in SGBCI.

[113]I therefore uphold the claimant’s allegation that in this regard too Leigh Day were in breach of their duties to the claimant.

Causation

[114]This leads to the question whether any loss was caused by Leigh Day’s breach of duty. Mr Day’s evidence was that neither of Mr Isaacs’ proposals for managing a settlement sum, the overseas account method and the tranches method, were suggested or occurred to him, but he would not have adopted either even if he had considered them. Mr Smith argued, on the basis of this evidence, that therefore the claim must fail: he cited the speech of Lord Browne-Wilkinson in Bolitho v Hackney and City Health Authority,

[1998] AC 232

, a medical negligence case in which a doctor had failed to attend upon the claimant's young son. The trial judge found that, had she attended, she would not have intubated the boy and this would not have been negligent, but that without intubation the boy would in any event have died. Lord Browne Wilkinson, with whose speech the other Law Lords agreed, adopted the approach to causation taken by Hobhouse LJ in Joyce v Merton, Sutton and Wandsworth Health Authority, [1996] 7 Med LR 1, who said at p.20, "… a plaintiff can discharge the burden of proof on causation by satisfying the court either that the relevant person would in fact have taken the requisite action (although she would not have been at fault if she had not) or that the proper discharge of the relevant person's duty towards the plaintiff required that she take that action". Thus, Mr Smith submitted that similarly Leigh Day’s breach of duty caused no loss because in any event they would nevertheless have used a SGBCI account to hold the settlement sum pending distribution.

[115]I reject that submission. Mr Day’s concern about the overseas account method appeared to be based on the misunderstanding that this would have required that local drawings be in a foreign currency. His evidence about the tranches method was that it would have delayed distributing the funds: he said that he would have been very anxious that delay might lead to riots, especially if some Trafigura Claimants received settlement monies before others. The evidence did not explore whether the tranches method would in fact have caused any, and if so what, delay, but in any case I do not accept either that there was a real risk of such disturbances or that concerns of this kind would have driven Mr Day’s decision. In the event distribution of the settlement was delayed for several months and some of the claimants never received any money at all, but there is no evidence that this led to disturbances. No contemporaneous documents reflect a concern about civil disorder if distribution of a settlement was slow or gradual. I conclude that, if Leigh Day had appreciated the risks involved in keeping so large a fund in the Ivory coast, as they should have done, and if they had known that the Prestis card distribution scheme might be modified as Mr Isaacs suggested, I conclude that they would have adopted a modified and safer version of the scheme.

[116]Further, for the reasons that I have given,I conclude that Leigh Day could not consistently with their duty have had the whole settlement sum paid into an Ivorian account pending distribution. (This might not have dictated that they adopt one of the two proposals of Mr Isaacs: the evidence did not explore whether another money transfer method might have avoided this.) Therefore, I would reject Mr Smith’s argument even if I accepted the factual basis for it.

[117]Mr Smith had other arguments that no recoverable loss was caused by breach of duty on the part of Leigh Day. They were presented in different jurisprudential guises, but in essence he presented the claimant’s loss as being caused by judicial corruption.

[118]Mr Smith referred to the claimant’s pleading that Leigh Day should have known that “transferring such a large sum of money to the Ivory Coast would expose the settlement monies to the potential of interference from the agencies of the corrupt judicial and/or political system in general and from [Mr Gohourou] in particular”. He argued that in fact the loss is not realistically to be seen as caused by fraudulent activity on the part of Mr Gohourou or CNVDT. It is not in dispute in this litigation (and I shall therefore assume) that the claim that Mr Gohourou brought in the name of CNVDT was indeed fraudulent. Mr Smith also submitted that it had no objective merit: although there is no evidence of the basis on which the claim was made or of the applicable Ivorian law, I understood Ms Perry to accept this. Certainly she did not argue otherwise and identified no proper basis for the claim, and therefore I shall again assume that Mr Smith is right about this. Accordingly, Mr Smith submitted that Mr Gohourou’s fraudulent activity was not a sufficient cause of the loss, and that its real cause was the court orders, for which there was no conceivably proper basis. The reality, it is said, is reflected in Mr Cheick’s offer in November 2009 to “leave Mr Gohourou to the side” (see para 29above) and Mr Cissé’s email of 30 October 2009 (see para 30above).

[119]This submission does not assist Leigh Day. In cases of this kind the law is not concerned to identify a sufficientcause of the loss. The question is whether Leigh Day’s breach was an effective (not the effective) cause of the loss. Leigh Day’s breach was that they did not take proper steps to protect the settlement sum from dishonest claims, and the loss resulted from a dishonest claim. Admittedly, the dishonest claim was upheld (as I am to suppose) by judicial decisions that were the product of (as it is pleaded) “corruption on the part of the Court of Appeal, alternatively corrupt political pressure upon it”, and “corruption on [the part of the President of the Supreme Court] and/or corrupt political pressure on him”. That explains how CNVDT’s dishonest claim came to succeed, and, I would accept, means that the decisions themselves were, or at least the decision of the Court of Appeal was, also an effective cause of the loss, but to my mind the breach of duty remained an effective cause of it. After all, if the judicial decisions had come about not because the judiciary was corrupt but because the courts were misled by dishonest evidence presented in support of the claim, it could hardly be argued that Leigh Day’s breach did not cause the loss. I cannot accept that the position is different if the dishonest claim was successful not because of dishonest evidence but because of dishonest collusion with the court or other judicial impropriety.

[120]For similar reasons I reject Mr Smith’s submission that the judicial decisions were a novus actus interveniens, and broke the chain of causation from Leigh day’s breach in the sense, as it is now commonly expressed, of "obliterating" the Bank's fault: see Borealis AB v Geogas Trading SA,

[2010] EWHC 2789 (Comm)

, and Playboy Club London Ltd v Banca Nazionale del Lavoro Spa,

[2016] EWCA Civ 457

[121]Mr Smith’s further argument was that the loss was too remote to be recoverable. Although Leigh Day owed parallel duties both in contract and in tort and was in breach of both, questions of remoteness of damage in respect of both claims are governed by the principles that apply to contractual claims: see Wellesley Partners LLP v Withers LLP,

[2015] EWCA Civ 1146

. In that case the Court of Appeal rejected the submission that, because solicitors owe parallel duties in tort and contract, a claimant is entitled to have damages assessed by reference to the less demanding test typically applied to cases of tortious negligence, whereby a defendant is liable for any type of damage which is the reasonably foreseeable consequence of its breach. Accordingly, Ms Agouman is entitled only to damages that are recoverable in contract, where the basic rule is that “a contract breaker is liable for damage resulting from his breach if, at the time of making the contract, a reasonable person in his shoes would have had damage of that kind in mind as not unlikely to result from a breach”: see the Wellesley Partners case (loc cit) at para 69 per Floyd LJ. As Floyd LJ went on to observe (at para 74), “Damage may be of a kind which is reasonably foreseeable (and therefore recoverable in tort) yet highly unusual or unlikely (and therefore irrecoverable in contract)”: such damage would not be recoverable.

[122]However, whether the applicable test for remoteness is the contractual test or one of reasonable foreseeability, what matters is whether the loss is of a kind or type of loss (or, to use the teminology of Lord Hoffmann in Jolley v Sutton LBC,

[2000] 1 WLR 1082

, 1091D, a “genus” of loss) that satisfies it. It does not matter whether the parties should have contemplated or reasonably foreseen the particular loss or its extent, nor whether the precise manner in which it came about would have been within the parties’ reasonable contemplation: Overseas Tankship (U.K.) Ltd v. Morts Dock and Engineering Co. Ltd (“The Wagon Mound”) (no 1),

[1961] AC 388

, http://www.bailii.org/uk/cases/UKPC/1961/1.htmlHughes v. Lord Advocate,

[1963] AC 837

.http://www.bailii.org/uk/cases/UKHL/1963/1.html Nor does it matter whether it is thought likely that the contract will be broken: the question is what should have been contemplated assuming that the contract is broken.

[123]How then does the court go about deciding how a loss is to be categorised in order to examine whether it is of a kind that is recoverable? The authorities give some guidance as to the proper approach, at least where the court is applying contractual principles. In The “Achilleas”,

[2008] UKHL 48

Lord Hoffmann said (at para 22) that in cases of contract the only rational basis for distinguishing what loss is of the same type to what the parties should have contemplated and what is of a different type is by reference to a distinction that “would reasonably have been regarded by the contracting party as significant for the purposes of the risk that he was undertaking”.

[124]Mr Smith argued that the losses that were suffered by the claimant were not of a kind that would have been within the parties’ contemplation because Leigh Day could not reasonably have been expected to foresee, let alone to have it within their contemplation, that funds in SGBCI would be “attacked by a corrupt judicial decision”. But this argument again depends on characterising the type of loss by reference to the manner in which it came about. The type of loss that was suffered was that, as a result of Leigh Day not taking proper steps to protect the settlement sum from being acquired dishonestly by third parties making claims to it, Ms Agouman (and apparently other Trafigura Claimants in her position) did not receive her due. In my judgment, the loss was of exactly the kind that would be contemplated as the likely result of breach of the duty.

[125]I add that to my mind it adds nothing to recast the argument that the loss was too remote from the breach to be recoverable by submitting that it was outside the scope of the duty. The choice between these two formulations is, as Lord Hoffmann observed in the Jolley case, simply a matter of taste.

[126]I therefore conclude that the claimant has established that Leigh Day’s breach of duty caused her loss.

Damages

[127]If I am right in these conclusions, the claimant suffered some loss as a result of Leigh Day’s breach of duty. Mr Smith submitted, however, that the claimant lost only the value of the chance that, but for the breach, she might have safely received her due under the settlement. His argument was that the value of that chance depended on(i) an assessment of the likelihood that but for the breach Leigh Day would have found a safer way of distributing the funds, and

(ii) whether, if they had, they would have implemented it, and as a result the claimant would have received all her compensation. This involves an assessment of what advice would have been given by consultants had Leigh Day sought advice about how the fund might best be handled, and so what Mr Smith called “the hypothetical conduct of third parties”. He submitted, citing the judgment of Floyd LJ in the Wellesley Partners case, that the court will widely apply “the ‘lost chance’ doctrine where the conduct of third parties is involved”.

[128]A string of authorities following Allied Maples Group Ltd v Simmons & Simmons,

[1995] 1 WLR 1602

establishes that the court will assess the loss of a chance where the recoverability of loss “depends on the actions of a third party whose conduct is a critical link in the chain of causation”: Vasiliou v Hajigeorgiou,

[2010] EWCA 1475

at para 21 per Patten LJ. However, as Patten LJ goes on to explain (at para 22) in these cases “The loss of a chance doctrine is primarily directed to issues of causation and needs to be distinguished from the evaluation of factors that go only to quantum”.

[129]Here there can be no doubt that, because Leigh Day arranged the settlement sum to be held in SGBCI and kept it there until the so-called freezing order was made, Ms Agouman was paid nothing from it. Mr Smith’s argument was that the measure of recoverable loss depends on an assessment of what might have been advised or done by third parties in what Patten LJ called “the alternative scenario he is presented with”. The nature of the exercise undertaken by the court in these circumstances was explained by Toulson LJ in Parabola Investments Ltd v Browallia Cal Ltd,

[2010] EWCA Civ 486

(at para 22): some forms of consequential loss “are not capable of … precise calculation because they involve the attempted measurement of things which would or might have happened (or might not have happened) but for the defendant’s wrongful conduct, as distinct from things which have happened. In such a situation the law does not require a claimant to perform the impossible, nor does it apply the balance of probability test to measurement of the loss”. Toulson LJ went on to explain (at para 23) that, rather than apply a balance of probabilities approach, the court “estimates the loss by making the best attempt it can to evaluate the chances, great or small (unless those chances amount to no more than remote speculation), taking all significant factors into account”. This might involve assessment of chances in a manner akin to that explained in the Allied Maples case, but only as part of a broader assessment of an admittedly rather imprecise kind.

[130]Mr Isaacs identified the overseas account method and the tranches method as safer ways of distributing the settlement sum. No other proper method has been identified and therefore the assessment of damages must be on the basis that one of these two methods was adopted. In my judgment Leigh Day would have fulfilled their duties to the claimant if they had adopted either method. Therefore, in assessing the quantum of damages Leigh Day are entitled to have the court suppose that they adopted the method that is more favourable to them, that is to say that produces the lower measure of damages.

[131]Although I determine that this is the broad approach to be taken to assessing damages, as I indicated during the hearing I shall not go on to determine in this judgment the exact amount of damages to which Ms Agouman is entitled. Little was said during the hearing about the quantum of damages except as to the broad principles to be adopted. The witnesses’ evidence was not directed to quantification, and my attention was not drawn to relevant documents.

[132]Specifically, i) It was not explained how it came about that Leigh Day reached an agreement to settle CNVDT’s proceedings in the Ivory Coast whereby some were to receive from them their share to the settlement sum (which, as the parties agree, Leigh Day held on trust for all the settling claimants) but others, including Ms Agouman, were to receive nothing from Leigh Day, and were left to look to CNVDT for any recovery. ii) I understand that in fact Ms Agouman has received nothing from CNVDT (or from elsewhere) in respect of her Trafigura claim. Mr Smith did not argue that I should bring into account the value of any prospect that she might do so, and I understand that Leigh Day accept that the prospect of this is negligible, although it has not been distinctly admitted or proved. iii) Mr Smith submitted in general terms that the claimant’s damages should be discounted to take account of the possibility that she would not have received her entitlement in any event. I am sceptical whether the damages should be much reduced for this reason: in theory, of course, however the distribution of the settlement sum was undertaken, it might have been requisitioned by Government decree, but no evidence indicates that that is a realistic possibility; I do not understand how a fund held in France (or elsewhere outside the Ivory Coast) might be vulnerable to a dishonest claim of the sort brought by CNVDT in Abidjan (and indeed Mr Smith’s submission was that the otherwise hopeless claim could not have succeeded but for the Ivorian judiciary being corrupt); and the scheme for using Prestis cards was designed to prevent “low level” fraud against individual claimants and the implication of Mr Jay’s advice was that it was considered satisfactory in that regard. iv) However, if the tranche method were adopted (as Ms Perry accepts it properly could have been) there must be the possibility that some part of the settlement sum might have been successfully claimed by CNVDT, and in principle this, as it seems to me, should be reflected in the assessment of Ms Agouman’s damages. The impact of this consideration would depend not only upon the likelihood that a comparable claim might have been made by CNVDT even if the amount in Leigh Day’s account with SGBCI were only a relatively modest tranche of the settlement sum, but also whether properly and consistently with their duties Leigh Day might have made transfers in tranches significantly larger than the equivalent of £1 million, the amount that Mr Isaacs used by way of example to explain his proposal. v) Although Mr Isaacs recognised that fees and charges would have been incurred if Leigh Day had adopted the overseas account method, counsel did not address me about how the assessment of damages should reflect them.

[133]In view of these and other uncertainties, I am simply not in a position to assess the quantum of damages, and I shall give directions for an inquiry as to damages (unless they can be agreed).

Claim for breach of trust

[134]Similarly, I shall not determine the claim of breach of trust in this judgment. There was little reference to it during the trial, the same relief is sought for breach of trust as for breach of contract and tortious duty, and the allegations of breach of trust are the same. If I am right about the claims in contract and tort, the claim in trust adds nothing. If it is to be pursued, the court will need more assistance, and when I hand down this judgment I shall invite submissions about its disposal.

[135]I add only that, if I had decided that Leigh Day were in breach of trust, I would not have used the Court’s jurisdiction under section 61 of the Trustee Act, 1925 to relieve them of liability. Because of the complaints against them that I have upheld, I would not have concluded that Leigh Day acted “reasonably” within the meaning of the section, and in any case to my mind Leigh Day have not satisfied the onus on them of demonstrating that the jurisdiction should be exercised. This is not least because they did not take it upon themselves to explain why, as trustees for all the Settling Claimants, they entered into an arrangement the effect of which was to ensure that some beneficiaries received their due at the expense of Mrs Agouman and others. It is true that the claimant did not make a complaint in that regard, but that would not alleviate Leigh Day of the burden of establishing that nevertheless the jurisdiction should be exercised.

Conclusion

[136]I therefore uphold Ms Agouman’s claim for damages for breach of contract and duty of care. I shall hear submissions about the claim for breach of trust and about the directions that I should make for assessing damages.