Yao Essaie Motto & Others –v- (1) Trafigura Limited & (2) Trafigura Beheer BV [2011] EWCA Civ 1150

Approximately 30,000 Claimants sought damages for personal injury arising from the fly tipping of toxic wasted around Abidjan in the Ivory Coast. The claims settled for £30 million. The Claimants’ solicitors presented a Bill for in excess of £104 million, including 100% success fees for both solicitors and Counsel, and an ATE premium of over £9 million.

The Court of Appeal upheld most of the Senior Costs Judge’s rulings. Their Lordships did however disagree with him on the issue of proportionality in that, having found that the overall base costs had the appearance of being disproportionate, he was not entitled to find that certain items were proportionate and thereby excluded from the test of necessity, Giambrone & Ors –v- JMC Holidays [2002] EWHC 2932 (QB) distinguished, Home Office –v- Lownds [2003] EWCA Civ 365 applied.

The Court also finally provided a high-level decision on the vexed issue of funding costs – see Bollito –v- Arriva London [2009] EWHC 90136 (Costs); disagreeing with Master Hurst, they found that the costs of setting up conditional fee agreements and ATE policies, as well as liaising with and taking instructions from ATE insurers, were not recoverable.