Court of Appeal upholds decision to cut Leigh Day's Trafigura costs bill

The Court of Appeal has upheld a decision by senior costs judge Master Hurst to reduce Leigh Day's £105m bill in the case against Trafigura by more than 40 per cent.

Leigh Day represented 30,000 Ivorian villagers in their claim against the oil giant. One of its contractors, they said, illegally dumped 400 tons of toxic waste along the coast near Abidjan, causing injuries to local residents.

The case settled in September 2009 with no admission of liability, but in a consent order Trafigura agreed to pay damages of £30m, with claimants awarded about £1,000 each.

The judge awarded costs against Trafigura and Leigh Day, which had acted on a conditional fee agreement, entered a bill of costs totalling £104.8m.

That figure included success fees for both solicitors and counsel of 100 per cent and an ATE premium of more than £9m.

In a judgment on preliminary issue in February, Master Hurst reduced the uplift to 58 per cent (Motto and Ors v Trafigura [2011] EWHC 90201 (Costs)).

The senior costs judge said as the case progressed from the original group litigation order in 2007, the prospects of the claimants improved. With Trafigura accepting to compensate the claimants, their chances of winning improved to 68 per cent rather than the original 50/50, the judge said.

Ruling in the Court of Appeal this morning in Motto v Trafigura [2011] EWCA Civ 1150, the Master of the Rolls, Lord Neuberger, said he agreed with the costs judge's determination of a 58 per cent uplift and with his decision to fix the ATE premium at £9,677,554 by reference to a 65 per cent prospect of success.

Lord Neuberger, with whom Lord Justice Maurice Kay and Lord Justice Hughes agreed, also said Leigh Day could not recover the costs of preparing and advising on the CFAs, nor could they recover the costs incurred in discussing the litigation with the ATE insurers.