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Trafigura lawsuits (re Côte d’Ivoire)

Toxic Waste, By:Fernost, Creative Commons Pour la version française de ce profil, cliquez ici.

On 19 August 2006 the ship Probo Koala unloaded a waste shipment at Abidjan, Côte d’Ivoire (Ivory Coast).  This waste was disposed of at open air sites around Abidjan.  The ship was chartered by the London office of Trafigura, a Dutch international petroleum trader.  The Probo Koala had attempted to discharge this waste at the port of Amsterdam, but the port service would not accept the waste without an additional handling charge because of the waste’s alleged toxicity.  The ship left the port of Amsterdam without discharging its waste.  After the waste from the ship was discharged in Abidjan, people living near the discharge sites began to suffer from a range of illnesses (nausea, diarrhea, vomiting, breathlessness, headaches, skin damage, and swollen stomachs).  Sixteen people have died, allegedly from exposure to this waste, and more than 100,000 have sought medical attention.

Trafigura sent two of its executives to Abidjan in August 2006 to investigate what happened.  These executives and a representative from a Trafigura subsidiary, Puma Energy, were arrested by Ivorian authorities and imprisoned.  On 12 February 2007 the Government of Côte d’Ivoire signed a settlement agreement with Trafigura in which the company agreed to pay $198 million to the Ivorian government for a compensation fund, the construction of a waste treatment plant and to assist in the recovery operations.  However, the company stressed this payment was not "damages" and that it did not admit liability.  Côte d’Ivoire agreed to drop any prosecutions or claims, now or in the future, against Trafigura.  After this settlement agreement was made, the Trafigura executives and the Puma Energy representative were released from prison.

Claims in the United Kingdom

Probo Koala shipIn November 2006, the High Court of Justice in London agreed to hear a group action by about 30,000 claimants from Côte d’Ivoire against Trafigura over the alleged dumping of toxic waste from the Probo Koala.  Applicants alleged that the waste had high levels of caustic soda, as well as a sulphur compound and hydrogen sulphide making it hazardous waste as defined by the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes.  

Trafigura denied the waste was toxic and claimed the waste was standard waste from onboard operations of ships (“slops” as defined by the International Convention for the Prevention of Pollution From Ships).  Trafigura was alleged to have shipped the untreated chemical waste to Côte d’Ivoire with knowledge that there were no facilities to treat it.  Trafigura denied responsibility, stating that they had entrusted the waste to an Ivorian disposal company, Tommy, which was established a few weeks before the ship’s arrival.  Trafigura claimed it had no grounds for suspecting that Tommy would improperly dispose of the waste.  Trafigura denied the number of applicants/victims and stated that only 69 people suffered significant injury.  On 23 March 2009, the court granted the plaintiffs a temporary injunction barring Trafigura from contacting any of the claimants in the case.  This injunction came after counsel for the claimants presented evidence that the company had been contacting individual claimants urging them to change their sworn statements.  

In September 2009, the parties to the UK lawsuit reached a settlement agreement in which Trafigura agreed to pay each of the 30,000 claimants a certain amount, approximately $1500.  The parties released a joint statement that said, among other things, "independent experts are unable to identify a link between exposure to the chemicals released from the slops and deaths, miscarriages, still births, birth defects, loss of visual acuity or other serious and chronic injuries. Leigh Day and Co, in the light of the expert evidence, now acknowledge that the slops could at worst have caused a range of short term low level flu like symptoms and anxiety".

In October 2009 an individual, Claude Gohourou, came forward claiming to represent the victims through his organization - National Coordination of Toxic Waste Victims of Côte d’Ivoire.  Mr Gohourou succeeded in freezing the bank account in which the settlement funds were being held.  The claimants' lawyers dispute the authenticity of this organization and Mr Gohourou's authority to distribute the funds to the claimants.  On 22 January 2010, the Court of Appeals in Abidjan ruled in favour of Mr Gohourou and his organization and ordered the settlement funds be transferred to him.  In mid-February 2010 the parties reached an agreement about the distribution of the settlement funds.  However, 6000 of the victims still have not received the compensation.

In June 2016, the High Court ruled that Leigh Day, the law firm representing the victims, should compensat the victims that had not received compensation due to the breach of its its duty of care.  Leigh day declared: "...were devastated when some of the monies were misappropriated. We did our damnedest to recover the monies resulting in the great majority of our clients having received their compensation."

Claims in the Netherlands

In February 2008, Dutch prosecutors served notice that they intend to file criminal charges against Trafigura, among others, for its alleged part in the disposal of waste in Côte d’Ivoire.  In June 2008 an Amsterdam court began hearing evidence in this case.  The Dutch trial started in June 2010.  

The Dutch prosecutors accused Trafigura of illegally exporting hazardous waste to Côte d’Ivoire.  The allegations against the company are that it breached Dutch export and environmental laws as well as forging official documents.  Trafigura rejected these charges.  In July 2010 the Dutch court ruled that the company had concealed the dangerous nature of the waste aboard the Probo Koala and fined the company €1 million.  The Dutch court also convicted a Trafigura employee and the Ukrainian captain of the Probo Koala for their roles in the matter. 

In the meantime, Greenpeace filed a complaint with the Court of Appeal in The Hague trying to compel the public prosecutor to prosecute the company for more than just the export of hazardous waste.  In April 2011, the appeal court ruled that the public prosecution department is not required to prosecute Trafigura for the dumping of the waste in Côte d’Ivoire. 

When the regional court in Amsterdam decided in 2008 not to prosecute Trafigura's co-founder and director Claude Dauphin, the prosecutors appealed the court's decision.  They were turned down and later lodged another appeal before the Supreme Court, which sent the case back to the appeals court in Amsterdam to review the original decision.  In January 2012, the court decided that Claude Dauphin can be prosecuted for the alleged illegal export of waste by Trafigura.  In November 2012 the Dutch Public Prosecutor's Office and Trafigura reached an out-of-court settlement.  Trafigura agreed to pay €300,000 compensation and paid a €67,000 fine in return for the withdrawal of the case against Claude Dauphin.

In February 2015, lawyers representing 110,937 Ivorians sent a summons to Trafigura in respect of a new lawsuit. The lawsuit alleges that Trafigura caused " bodily, moral and economic injury...to the plaintiffs," and requests that Trafigura pay each claimant 2,500 euros in compensation, as well as cleaning up the waste.  In November 2016, a Dutch court rejected the claim by a foundation representing them, finding that the foundation did not establish that the claim was in the best interests of the affected Ivorians.

Claims in France

In July 2008, three French victims of the Probo Koala incident filed a complaint against Trafigura before an examining magistrate in Paris alleging corruption, involuntary homicide and physical harm leading to death.  

- Court finds Leigh Day breached duty of care to Trafigura claimant, John Hyde, Law Society Gazette (UK)
- "100,000 victims of Ivory Coast toxic spill launch Dutch suit", Yahoo News, 20 Feb 2015
- "Dutch Probo Koala toxic waste cases finally settled out of court", DutchNews.nl, 16 Nov 2012
- "Trafigura lessons have not been learned, report warns", Fiona Harvey, Guardian [UK], 25 Sep 2012
- "Trafigura director can be prosecuted says Dutch court", Expatica, 30 Jan 2012
- "Trafigura fined €1m for exporting toxic waste to Africa", Rob Evans, Guardian [UK], 23 Jul 2010
- "Fear over Ivory Coast ruling on Trafigura waste pay-out", BBC News, 22 Jan 2010
- "Trader Trafigura settles Ivorian waste case", Loucoumane Coulibaly & Reed Stevenson, Reuters, 20 Sep 2009
- "Oil company accused of 'nobbling' witnesses in African toxic waste case", Frances Gibb, Times [UK], 24 Mar 2009
- "Ivory Coast turns to UK in class action over toxic waste", Times [UK], 4 Jun 2008
- "Update: Trafigura To Pay Ivory Coast EUR7.6M Over Toxic Waste", Lananh Nguyen, Dow Jones Newswires, 17 Apr 2008
- "Dutch plan to charge Trafigura over toxic ship", Reuters, 19 Feb 2008
- "Côte d'Ivoire toxic waste probe goes to France", afrol News [Lesotho], 26 Jul 2007
- "Toxic waste deal won't halt case", BBC News, 15 Feb 2007
- [FR] "Déchets toxiques : Trafigura dédommage la Cote d’Ivoire mais nie toute responsabilité", Véronique Smée, Novethic, 14 Feb 2007
- "UK action over 'toxic waste' case", BBC News, 2 Feb 2007
- "Neglect and Fraud Blamed for Toxic Dumping in Ivory Coast", Lydia Polgreen, New York Times, 24 Nov 2006
- "Global Sludge Ends in Tragedy for Ivory Coast", Lydia Polgreen & Marlise Simons, New York Times, 2 Oct 2006

- Trafigura : Probo Koala updates
- Trafigura: Amnesty International Report, 27 Sep 2012
- [PDF] Trafigura & Leigh Day: Agreed Final Joint Statement, 19 Sep 2009
- Leigh Day [counsel for plaintiffs]: International Claims - Ivory Coast 
- Leigh Day: Victims of toxic waste in despair at court ruling, 22 Jan 2010
- Amnesty International & Greenpeace: [PDF] The Toxic Truth, 25 Sep 2012
- Sherpa: [PDF] Probo Koala: A catastrophe emblématique, justice exemplaire, 9 Jul 2008
- [FR] Commission internationale d’enquête sur les déchets toxiques dans le District d’Abidjan [établie par le Gouvernement de Côte d’Ivoire] : [DOC] Rapport de la commission internationale d'enquete sur les dechets toxiques deverses dans le district d'Abidjan, 19 Feb 2007

- [FR] Fédération Internationale des Ligues des Droits de l’Homme (FIDH): Affaire des déchets toxiques : une transaction au détriment de la justice et de la réparation pour les victimes, 16 Feb 2007
- Greenpeace International: Toxic Waste in Abidjan : Greenpeace Evaluation, 15 Sep 2006

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13 October 2009

Gag on Guardian reporting MP's Trafigura question lifted

Author: David Leigh, Guardian [UK]

The existence of a previously secret injunction against the media by oil traders Trafigura can now be revealed...Trafigura's legal firm, Carter-Ruck, has withdrawn its opposition to the Guardian reporting proceedings in parliament that revealed its existence. Labour MP Paul Farrelly put down a question yesterday to the justice secretary, Jack Straw. Here is the full text of Farrelly's question: "To ask the Secretary of State for Justice what assessment he has made of the effectiveness of legislation to protect (a) whistleblowers and (b) press freedom following the injunctions obtained in the High Court by (i) Barclays and Freshfields solicitors on 19 March 2009 on the publication of internal Barclays reports documenting alleged tax avoidance schemes and (ii) Trafigura and Carter-Ruck solicitors on 11 September 2009 on the publication of the Minton report on the alleged dumping of toxic waste in the Ivory Coast, commissioned by Trafigura."

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13 October 2009

Trafigura drops bid to gag Guardian over MP's question

Author: David Leigh, Guardian [UK]

An unprecedented attempt by [Trafigura] to prevent the Guardian reporting parliamentary proceedings has collapsed…Carter-Ruck, the law firm representing Trafigura…insisted that an injunction obtained against the Guardian prevented the paper from reporting a question tabled by the Labour MP Paul Farrelly…Farrelly is asking…about the implications for press freedom of a high court injunction obtained…by Trafigura "on the publication of the Minton report on the alleged dumping of toxic waste in the Ivory Coast, commissioned by Trafigura". The Guardian is still forbidden by the terms of the existing injunction…to give further information about the Minton report, or its contents…Carter-Ruck…said the Guardian's reporting on the issue had been "highly misleading". The firm added: "There is no question of Trafigura seeking to gag the media from reporting parliamentary proceedings, and the parties have now agreed to an amendment to the existing order so as to reflect that."

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16 October 2009

Minton report: Carter-Ruck give up bid to keep Trafigura study secret

Author: David Leigh, Guardian [UK]

Lawyers for oil traders Trafigura finally abandoned attempts to keep secret a scientific report about toxic waste dumping in west Africa…The Minton report, commissioned in 2006 from the London-based firm's scientific consultants, said that based on the "limited" information they had been given Trafigura's oil waste, dumped cheaply the month before in a city in Ivory Coast, was potentially toxic, and "capable of causing severe human health effects"…The author of this initial draft study, John Minton, of consultants Minton, Treharne & Davies, said dumping the waste would have been illegal in Europe…Trafigura said the report was only preliminary and had proved to be inaccurate.

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16 October 2009

[video] Trafigura director Pierre Lorinet is interviewed about recent legal developments in the UK

Author: Trafigura

Pierre Lorinet: "Fundamentally the Minton Report was a draft, it was a work in progress. And it was immediately superseded by another report which looked at the actual material because the Minton report was just an analysis of possible...there was no fundamental analysis. It was superseded very quickly by the NFI [Netherlands Forensic Institute] Report, which basically demonstrated that the slops could not have caused what’s been alleged. And in particular the NFI report formed the basis, the authoritative analysis for both the claimants and ourselves within the UK class action... All [the injunction] was designed to do was to stop some of the media to report in a misleading fashion on the Minton report. It was never intended to stop parliamentary questions or debate in parliament on such issues."

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4 November 2009

Concern that Ivory Coast compensation will be misappropriated

Author: Leigh Day & Co.

Concern is growing that the compensation paid by Trafigura to the 29,624 claimants in the Ivory Coast following their alleged exposure to the waste from the Probo Koala in 2006 is likely to end up being expropriated. On 24th September Trafigura paid the settlement monies into two Leigh Day client accounts at the Societe Generale bank in Abidjan covering the full agreed compensation for the injury claimants and the business claimants…[O]n 22nd October a freezing order was served on Leigh Day and the bank in relation to the accounts. The freezing order had been made by the Abidjan Courts on behalf of a fabricated claim by a community representative.

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4 November 2009

Payments in Ivory Coast Dumping Case at Risk, Lawyer Says

Author: Adam Nossiter, New York Times

Thousands of victims of one of the worst toxic dumping scandals in years could lose their hard-won settlement thanks to maneuverings by a shadowy but “influential” figure in Ivory Coast, where the dumping occurred…Up to $45 million in compensation is at stake, intended for about 30,000 victims of an oil-based sludge surreptitiously dumped around Abidjan, Ivory Coast’s capital, in 2006…[T]he money, frozen in a local bank, has been claimed by a largely self-appointed community representative named Claude Gohourou. In recent weeks, the Ivorian judiciary has sided with him, according to the London law firm Leigh Day & Company, which represents the victims.

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5 November 2009

Côte d'Ivoire authorities must ensure Trafigura toxic waste compensation reaches victims

Author: Amnesty International

Amnesty International…urged the authorities in Côte d'Ivoire to ensure that $45 million compensation paid by the oil trading company Trafigura to victims of one of the worst toxic dumping scandals in recent years reaches the people to whom it is owed…The…compensation has been frozen in the bank account of the law firm representing the victims in the court case against Trafigura, the company accused of dumping the waste. The freezing order was made after a man claiming his organization…represents the “real victims” said the money should be transferred into that organization’s bank account instead. This claim appears entirely false and has been refuted by the victim’s UK lawyers.

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Author: Cissé Sindou, Nord-Sud Quotidien [Côte d'Ivoire]

Le procureur de la République veut prévenir d’éventuels troubles à l'ordre public que pourrait causer l'affaire des 22,5 milliards de francs [versés par la société Trafigura] aux victimes des déchets toxiques...après avoir entendu les parties en conflit, il a décidé du maintien des fonds sous séquestre. Selon une source proche du parquet, cette décision vise à éviter toute disparition de l'argent au détriment des 31.000 destinataires qui pourraient alors descendre dans la rue..La décision signifiée au cabinet londonien ordonne également la cessation de tout paiement à qui que ce soit au titre du dédommagement, jusqu'à ce qu'il soit autrement ordonné par voie de justice...

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6 November 2009

Ivorian joy at Trafigura ruling

Author: BBC News

A court in the Ivory Coast has ruled that compensation due to thousands of victims of dumped waste should not be paid to one man to distribute…Trafigura had agreed to pay $45m (£27m) to 30,000 victims in an out-of-court settlement. Claude Gohourou argued he should be given responsibility for the money, but there were doubts he would pass it on. However, despite the ruling the money remains blocked and victims cannot yet gain access to their compensation…[The court] declared its verdict after an hour, saying that Mr Gohourou's organization…had no legal right to freeze the accounts because the association had only just been set up.

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6 November 2009

Toxic waste claimants relieved as Abidjan court refuses transfer of funds

Author: Leigh Day & Co.

This afternoon, the President (Antoine Ble) of the Tribunal of First Instance in Abidjan, Ivory Coast, gave his judgment that the compensation fund for the 30,000 claimants who alleged they were victims of the 2006 toxic waste dumping in Abidjan from the Trafigura ship, the Probo Koala should remain in the client account of their lawyers, Leigh Day & Co. The Court specifically decided that the money should not be transferred to the account of Claude Gohourou, who had claimed that his association, the National Coordination of Toxic Waste Victims of Cote d’Ivoire (CNVDT-CI) represented all 30,000 Claimants and should have received the money on their behalf.

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