Motto & Ors v Trafigura Ltd & Anor

I can now indicate that we have moved into open court and I propose to continue with my judgment on the second application which was before the court at the end of last week, I having reserved judgment from Friday to today, Monday, 18 May 2009.

The second application arises out of an appeal made against an order of Master Leslie, the background to which is this, that the claimants served on the defendants some 56 witness statements. They are witness statements of fact. The claimants refer to them as “generic factual witness statements”. To put it in context, the background history is that in August 2006 as I mentioned in the earlier closed part of this judgment contents of the slop tanks of the ship Probo Koala were distributed into tanker lorries and then distributed to various locations in and around Abidjan. It appears to be common grounds between the parties that 528 cubic metres of waste were so distributed.

There are a number of factual disputes. What was deposited where and in what quantities? What did the waste slops contain? Did it have toxic qualities, and if so how did it react in certain conditions? As I understand it gases given off by the materials could vary, depending upon whether it was deposited at a dry site or a wet site, for example, and on this and all these issues I will be receiving expert evidence in the case.

As I understand it, the evidence of these factual witnesses, 56 of them, is required to support the claimants’ case on these or similar issues. Without going into the detail the defendants objected to parts of this evidence on a number of different bases and an application was made to the Master who has hitherto been managing these cases, Master Leslie. One of the principal objections, though not the only objection, was that within the witness statement there was much expression of opinion. These are not expert witnesses, although many of them possess significant potentially relevant expertise, and their statements of opinion should not have been included.

The claimants countered in this way: First, this is a trial by judge alone. We state categorically that where the witness expresses an opinion we do not rely upon it. We say openly that these are not expert witnesses and having a Queen’s Bench judge try the case are confident that the judge can sift out the opinion evidence for himself. The evidence, it is submitted, is required effectively to paint the picture, to tell it as it was on the ground. What was happening; the queues at the hospitals; the noxious smells; the symptoms which were being displayed or claimed by those who were in the hospital queues; the different levels and patterns of complaints from one area of the city to another. This may have relevance in showing higher levels of illness or complaint in areas where there had been substantial dumping and less where there had been little or no deposition.

Master Leslie determined one matter only. He decided that there was inadmissible opinion evidence which should be excised. He made an order to that effect and provided by case management for the parties to try and agree in stages those parts of the statement which were to be removed. He did not go on to consider the wider issues which have been argued before me, he only made an order as to the excision of opinion evidence.

The parties are now agreed that the overall task should be undertaken by the trial judge and in the circumstances although it is not by express agreement it seems to me that the appropriate thing that I should do is first grant permission to appeal against Master Leslie’s order, and secondly dismiss that appeal, then to treat this as an application newly made to me, dismissing the appeal as I do because I agree with the Master and I think it is no longer seriously contended that the opinion evidence does have to come out, whether formally or informally.

I have already indicated that there are 56 such witness statements. They do not include statements from any claimants. They are factual witnesses and there are many, many hundreds of pages. I was asked to read only a sample, 17 of them, I think. Following Master Leslie’s order, the claimants had agreed to redact the more obvious statements of opinion and did so by highlighting the relevant part of the statement in a colour midway between blue and green. The defendants countered by painting their redactions in yellow. There is a very large amount of yellow and a very small amount of blue/green. In some cases the defendants have wiped out completely a whole witness statement on the basis that either it offended as opinion or for other reasons. It will be appreciated that my knowledge of these 50-odd witness statements is very limited, having read and only speed read a percentage, about one quarter or one third of them. In a broad sweep they can be summarised in this way. More than 30, perhaps 40, of the witness statements appear to be from people who were in Abidjan during the relevant days in August 2006. They include at least one journalist, many doctors and other medical personnel, and other witnesses, for example an inspector of classified installations in the Ivorian Antipollution Centre, a president of a workers’ association, and another inspector of classified installations. Broadly speaking their evidence does two things. It paints a picture of what was happening, I repeat the queues to go into hospital, the symptoms being displayed by many people, the reports of symptoms being made by those people, the nature of the noxious smell, the locations where things seemed to be worse and the locations where things seemed to be better and so on. But also and it will be surprising if it were otherwise, the witnesses draw the inference that the smell and the materials deposited caused the problems which were perceived to arise.

There are other witnesses to other matters, but perhaps the second largest category are what I can call the Norwegian witnesses who give evidence as to a wholly separate incident involving a wholly separate load in a different part of the world but involving these defendants and their deposition of allegedly similar waste products.

The objections to this evidence made on behalf of the defendants can be put broadly in two ways. First of all, the opinion evidence is prejudicial and should be excised, though I think there is some concession that I will be capable of sifting much of it out for myself. But secondly that this evidence is of little or no value, particularly having regard to case management orders previously made as to how this trial should proceed. Those are the two broad objections; (i) opinion evidence should come out and (ii) evidence which is irrelevant, or of little value, or which only repeats that which is available elsewhere should not be adduced at the trial.

There are separate submissions about the Norwegian evidence and what has been called the Tommy evidence. I do not need to say more about that at the moment.

I have been referred to an order by the defendants made in October of last year. It is dated 23rd October and it is a consent order. It provides that the court will not be required to determine the issues of existence of duty, breach and foreseeability and that if any claimant proves that he or she sustained any personal injury of a type which would entitle him or her to an award of damages under English law; and (2) that injury was caused by exposure to the materials, slops which were discharged from the ship, the defendants will pay all or any damages recoverable under English law, subject to credit being given for payments made to the claimant from a compensation fund established in the Ivory Coast. There were then further case management orders including the trial of lead cases before me this autumn with a time estimate of eight to ten weeks.

On behalf of the defendants it is said that the evidence produced in the 56 witness statements is not necessary and not relevant to the determination of those issues as set out in that order, that now generic issues are not to be tried, and that those witness statements might have had some relevance if this order had been made differently. However, as it seems to me, that overlooks the fact that this court will have to determine whether as separate preliminary issues or not, the nature of the waste, whether it was toxic, whether it was likely to cause injury and whether it did cause injury from the sites where it was deposited. There are broad issues that have to be determined over and above claimants being called to say what happened to them. I am to be treated to a mass of expert evidence from different experts going to those broader issues.

It is further submitted on behalf of the defendants that much of the factual content within those 56 statements is evidence which will be completely apparent and not in dispute between the parties as and when the expert evidence is finally put on the table. The experts are dealing with this case from a factual base, and in many instances an agreed factual base, and thus a lot of the material within these 56 witness statements will become superfluous.

The defendants are also concerned that the real purpose of many of these statements is to raise a state of prejudice, thus for example evidence which is presented as being factual cannot be separated from opinion. An example was given; one of the doctors, it matters not which doctor, described the influx of patients into his domain and stated factually insofar as he was giving truthful evidence that over these days there was or appeared to be an increase in miscarriages. Yet it has been agreed between the parties that expert evidence of a gynaecological or similar nature should not be called and it is no part of the claimants’ cases that increases in miscarriages were a product of exposure to these allegedly toxic fumes. So why should this part of the evidence be in? True, it may give a general picture of people being ill and queuing up, but that part of the evidence would have no probative value at all.

I now propose to stand back and express my own relatively uninformed opinion, having only come to this case very recently, a case with which I am going to have to get increasingly to grips over the next weeks and months. Having read a sample of these statements and I emphasise only speed read them, my own first impression is that there is very limited value in these witness statements. The real crux of this case is going to depend upon the expert evidence, there being certain obvious agreed basic facts. The precise nature of the slops may be in dispute but I understand that there has been a significant amount of agreement because samples were taken and tested. The quantity is agreed. That it was deposited in various sites in Abidjan is agreed, in large quantities and there can be no gainsaying that it gave off a noxious smell. These are facts which will be common facts and upon which the experts who give evidence in this case will draw. The valuable evidence as it seems to me in this will be the evidence coming from the claimants themselves. The witnesses in those particular areas and the experts, and reading through these statements and trying to I think successfully eliminate from my own mind those parts which might be considered to be opinion evidence or might be considered to be prejudicial I find it difficult to understand how I am going to be assisted by much of this evidence, although I do emphasise that that is very much a preliminary opinion.

On the other side of that same coin my initial impression is that there is not very much there for the defendants to be concerned about and indeed in the course of argument I suggested that with goodwill and confidence in the judge the defendants might be content for witness statements to be read, and why not? What did they have to fear from this evidence which they said was irrelevant and merely prejudicial, particularly as they said they could rely upon me to ignore the prejudice? The answer was given, for example in relation to that gynaecological evidence, that if that was to be given they would need to seek permission to adduce evidence to counter it. But why, if it is irrelevant? At the moment, I do understand the fear about it.

In the course of argument to begin with I was sympathetic to the defendants’ submissions. Bearing in mind the need to keep this case under control and to indulge in robust case management and to ensure that the court gets the vital evidence and that evidence which is peripheral and of little value should not occupy huge amounts of court time, my intention (as I think I made clear to the parties) at one stage was to limit this evidence significantly. However I was then told that this was evidence which had been carefully considered by leading counsel for the claimant, carefully selected and obtained and was important evidence and that I should not jump to conclusions precipitately.

Two things. First, this is a decision which cannot be taken until I have the detailed expert evidence. Then I will be able to see whether this evidence has any substantial value in respect of matters which need to be proved. Secondly, I need myself to understand the case better before making far-reaching decisions which will affect the way the trial is to proceed. But I can at this stage make some strong, I hope, preliminary observations. I repeat that which I said a few moments ago. The impression I have at the moment is that this evidence is unlikely to be of any great value one way or another and is likely to pale into insignificance, as it seems to me at the moment, when compared with the important evidence which is yet to be placed on the table. Secondly, I am going to avoid insofar as I am able huge areas of what might be called satellite dispute. This case is to be tried proportionately and within the allotted timeframe. The calling of these witnesses with all that that entails, whether they are to attend the court or to be put on video link, however it is proposed to do it, will add tremendously to the length of the case. I am only prepared to allow that to happen if I reach the conclusion that it is going to assist me in determining the real issues in the case. For example I say now openly that I will be very surprised if I am going to find the Norwegian evidence of any benefit at all. I do not want to be distracted into considering another case on another day involving a different load, involving different chemical processes in Norway. It may be that that evidence would have some small value, but I get the firm impression that whatever happened in Norway is unlikely to make any crucial difference as to how I would determine the case in Abidjan. (Again, I repeat that that is my preliminary view at this stage.)

Accordingly I propose to postpone this consideration but to make some further case management orders to assist. It is common ground between the parties, subject to them talking and agreeing things, the case will have to come back for further case management before the summer vacation. I can deal with it at that stage but in the meantime I encourage the parties to consider what I have just been saying and to discuss between themselves what I have just been saying and to see whether these differences can be narrowed and some agreement made in relation to at least some, hopefully most, if not all, of these witness statements.

I also propose to make an order that in the interim the claimants in relation to each one of the 56 witness statements provide a witness summary in bullet point form, possibly, a matter for them, a witness summary setting out in respect of each individual witness those matters which they wish to rely upon and the matters and facts which each witness statement seeks to prove, leaving aside any questions of opinion. Thus it may be that bullet point one would be something along the following lines:

“Witness X, bullet point one. Between on 20-something of August there were long queues at the such and such hospital in the district of such and such with many people attending and complaining of symptoms A, B, C, D and E.”

Whatever it may be. But leaving out the questions of prejudice and opinion, in other words in short witness summary form, itemising point by point what is wanted from that witness statement and when those witness summaries have been received by the defendant they can consider them and either those witness summaries can go in as agreed evidence or not and the defendants can set out their contentions in relation to those witness summaries. I hope and expect that by the time the matter comes back before me we can have an agreement that many swathes of this evidence can be consigned to the delete bin, some of the evidence can be presented in consent form, agreed facts, and the need to call much if any live evidence can be minimised. Then when the case comes back to me for further case management the parties can present short skeleton arguments as to what I need to decide in relation to that which remains outstanding. The important matter is that there be co-operation in the meantime with a view to making this case shorter rather than longer, and confining it to the vital issues, bearing in mind that when I come to determine it, if I need to, only those witnesses who produce real probative evidence which is not covered elsewhere in the case will be permitted to give that evidence.