the toxic truth - Greenpeace

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the toxic truth be challenged or used to aid effective health interventions. Secondly, the requirement that Leigh Day & Co would not act for any other victims is significant. Few other firms in the UK are willing to take on these types of cases. They require particular skills, resources and expertise. The very limited number of law firms that are willing and able to take on such cases constitutes a significant challenge for victims when it comes to access to justice in cases involving corporate actors; the challenge is exacerbated by settlement provisions that bar law firms from acting for other potential clients. However, such provisions are increasingly common. Despite the limitations of the settlement agreement process, the fact that some of the victims of the waste dumping could access a court in the UK to make a civil claim against Trafigura provided some measure of justice in this case. However, the legal framework that enabled 30,000 Ivorians to seek a remedy in the UK has since been amended and it is unlikely that such cases will be possible in the future. One reason is the cost of mounting such cases. The law firm involved had to put substantial financial resources into the case, to take each claimants’ statement, to hire expert witnesses and to put together all of the factual evidence. Changes introduced in the Legal Aid, Sentencing and Punishment of Offenders Act, abolish what are known as “success fees” payable by defendants, will mean that law firms may not be able to run the risk of taking on these type of cases in the future. 717 The claimants’ fight to get their money The three-year legal process to secure the compensation, however, was not the only hurdle the claimants in the UK case faced. After concluding the settlement they found themselves facing further challenges when it came to receiving the compensation money. The distribution process established by the claimants’ lawyers in Abidjan was derailed when a group, calling itself the National Coordination of Toxic Waste Victims of Côte d’Ivoire (CNVDT-CI), falsely claimed to represent them and tried to secure control of the compensation fund. 718 Despite the fact that CNVDT-CI’s claim to represent the claimants in the UK case was blatantly false, they obtained an Ivorian court order for the money to be transferred to their bank account. 719 163 Chapter 13 People affected by the dumping of toxic waste queueing to try to access compensation, Abidjan, 9 April 2010. © ANP/AFP/SIA KAMbOu
164 Amnesty internAtionAl And greenpeAce netherlAnds Chapter 13 seeKing To prevenT vicTims’ access To Key informaTion Trafigura has never disclosed all of the information it holds on the content of the Probo Koala waste. As noted in previous chapters of this report, the most thorough analysis of the waste was carried out by the Netherlands Forensic Institute (NFI). This information was handed to lawyers acting for the claimants in the UK case. However, Trafigura had objected to this and brought legal proceedings in the Netherlands seeking to prevent UK lawyers Leigh Day from using the NFI information. Leigh Day had emphasized how important the NFI report was for the victims. On 20 April 2012 the Dutch High Court rejected an appeal by Trafigura in respect of the company’s complaint that the prospector had unlawfully handed over the NFI report to Leight Day. In an effort to prevent all-out fraud, in February 2010 the claimants’ UK lawyers agreed a deal with CNVDT-CI to carry out a joint distribution process. Some people were able to access their money through this process, but it was plagued by reports of irregularities and eventually ground to a halt, with some 6,000 people unpaid. The millions of dollars left in the fund disappeared. Both the UK law firm, and Amnesty International pressed the Ivorian government to investigate the case. An investigation into the misappropriation of the compensation money was opened in 2011. In May 2012, Côte d’Ivoire’s Minister of African Integration, Adama Bictogo, who had become involved in the process in 2010, when he is reported to have tried to facilitate an agreement between the claimants’ UK lawyers and CNVDT-CI, was sacked by the President over allegations that he had received some of the compensation money as a “fee” for his role in facilitation. 720 Allegations of bribery and witness tampering In early 2009, the victim’s lawyers, Leigh Day & Co, alleged that Trafigura and its lawyers, Macfarlanes, improperly approached lead claimants in the UK civil case in an attempt to make them change their testimonies. They obtained a temporary injunction barring Trafigura’s lawyers from contacting claimants in the case, after evidence was presented that some claimants had come under pressure to change their sworn statements. In particular, it was alleged that Macfarlanes, acting for Trafigura, paid for a claimant witness to travel to Morocco where he was met by one of Macfarlanes’ partners who questioned him for two days. This individual alleges that he was offered inducements to change his story and was put under considerable pressure to do so. He described the situation: “ i left abidjan with Royal air Maroc… i travelled business class. ...we were booked into the Sheraton. i had never seen such beautiful hotel in my life. i ate very well at the Sheraton…. The day after our arrival, two white men who spoke english arrived. at the beginning we chatted; then they began to ask me a lot of questions. i passed two entire days from 8am to 10pm responding to their questions. We took pauses of 20 minutes from time to time, but it was intense. They spoke of many illnesses such as malaria. They asked me how i could be sure that my illness had been caused by the waste and not something else… They told me to say that i hadn’t seen the trucks, even though i clearly remember seeing the trucks discharging the waste in akouédo. ” “ i started to feel that i had to agree with them or i wouldn’t be going home alive. after all these questions i was no longer even sure of the truth. The whites also knew i had a daughter. They told me that they could take care of her and pay all her expenses. i was astonished that they knew i had a daughter and even knew her 721 name and date of birth. ” Both Trafigura 722 and Macfarlanes 723 have denied the allegations that they acted improperly in respect of the questioning of witnesses. Macfarlanes admit to having met the claimant witness in Morocco and paying for his “travel and related costs”. They deny however having offered any inducements or having acted unethically. They have stated that they had “valid and exceptional legal reasons for agreeing to meet the individual referred to”, adding “We … had the right, and indeed duty, to investigate by interviewing the claimants, as their evidence would be likely to have a fundamental bearing on the case.” 724
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