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Motto and others v Trafigura Ltd [2011] EWCA Civ 1150

12th Oct 2011

This case involved the costs of the claim brought by a group of nearly 30,000 claimants in the Ivory Coast against Trafigura for personal injury as a result of the dumping of toxic waste in Abidjan in 2006.  The action had been commenced in November 2006, with Leigh Day acting for the claimants. The claims were all settled in September 2009 on the basis that Trafigura would pay £30 million and the Claimants’ costs on the standard basis, to be assessed if not agreed.

There was no agreement as to the costs, and various preliminary issues were tried by the Senior Costs Judge in advance of a detailed assessment.  Trafigura then appealed a number of the Costs Judge’s decisions, and the Claimants cross appealed a smaller number.  The Court of Appeal upheld the Costs Judge’s decisions on most points, but allowed parts of the appeal and parts of the cross appeal. Specifically:

  1. The Court of Appeal found that, if a bill of costs has the appearance of being disproportionate in total, the test of necessity has to be applied to each item of the bill.
  2. The Court of Appeal rejected Trafigura’s appeal in relation (a) to so called “vetting costs”; (b) alleged non compliance by Leigh Day with a Pre Action Protocol; (c) medical reports; (d) “abandoned claims”; (e) settlement and distribution costs; (f) the amount of the success fee; and (g) the amount of the ATE premium.
  3. The Court of Appeal allowed Trafigura’s appeal on the costs attributable to preparing and advising on CFAs and dealing with ATE insurers, and the Claimants cross appeal in relation to a cut off date which the Costs Judge had imposed in relation to distribution costs.

Christopher Butcher QC appeared for the Claimants.

The full judgment can be found here.