Lawyers come clean on a toxic waste problem

Day is representing 22,000 Ivorians who claim that their health was damaged in August 2006 by exposure to chemical waste dumped near their homes in Abidjan. Less than three months later, he launched a High Court claim against Trafigura, a Dutch oil trader, and its London-based operating subsidiary.

Trafigura had chartered an oil tanker known as the Probo Koala, which had been carrying naphtha. While at sea, the ship's operators treated the naphtha with caustic soda to reduce its mercaptan sulphur content.

The process, to improve its quality as motor fuel, produced liquid waste that was stored in the vessel's slop tanks. While the ship was passing through Europe, Trafigura tried to dispose of the waste in Amsterdam.

But after the local port service decided to increase its disposal charges by some 3000%, the Probo Koala continued to Nigeria.

On a return voyage to the Baltics, Trafigura arranged it says on the advice of its local shipping agents - for the waste to be offloaded at the port of Abidjan. It was here that a local company, unknown to Trafigura, arranged for it to be collected by moonlighting tanker-drivers, who dumped it on sites around the city.

Exactly what was in the waste is a matter of dispute, but there is no doubt that the smell of sulphur was appalling. The Ivorian government claimed that over 100,000 people had become ill and 15 had died. Trafigura paid the Ivorians around £100 million without any admission of liability, and some of this went to compensate local people.

The crucial question for Trafigura was causation whether the claimants had become ill because of exposure to the waste. If not, their claims would fail. A month ago, the oil trader's lawyers, Macfarlanes, wrote to the claimants' solicitors, Leigh Day & Co, proposing that the question of causation should be tried first.

Otherwise, a great deal of court time would be spent on technical issues, such as foreseeability and whether Trafigura owed the Ivorians a duty of care.

Although Trafigura did not concede these issues, it said the cost of deciding them up to £5 million would be out of proportion to any damages that the claimants might receive if they won their case.

Provided the claimants could prove that they had been injured by the waste, Trafigura promised to compensate them without the need for a further trial on the technical issues.

Leigh Day saw this as a concession and claimed it was therefore entitled to costs, requesting an interim payment from Trafigura of £2.5 million. After receiving a predictably dusty answer from Macfarlanes, the claimants' lawyers agreed last Thursday to postpone the question of costs until the causation hearing.

In a statement at the weekend, Trafigura said its aim had been to put the interests of justice and those of the parties before the interests of the lawyers, and added: "If the claimants can prove they have suffered harm from the slops, they will be compensated swiftly and without incurring significant legal costs."

But it was "wholly incorrect" to describe this as an admission of liability, the company insisted. "Trafigura maintains its position, based on the findings of independent experts, that the slops could not have caused the widespread illnesses alleged by Leigh Day."

It is not for me to judge which side is right. But what I do welcome is Trafigura's willingness, through its lawyers, to explain some of what is going on. In this country, defendants are often advised that it is not in their interests to speak publicly about pending litigation. That is generally bad advice.