Trafigura holds Dutch and French lawyers personally liable for forgery in unique case
Amsterdam, 26 June 2018 – Trafigura Beheer BV, part of one of the world’s leading commodity trading firms, will hold the board and lawyers of Stichting UVDTAB personally liable for submitting forged documents in claim before the Amsterdam court, related to the Probo Koala incident of 2006. It is believed to be the first time in the Netherlands that a lawyer will be held liable for submitting forged documents on behalf of a client in civil proceedings.
Trafigura is claiming damages in excess of EUR1 million against Dutch lawyer Yorick Boendermaker, his former law firm De Haan Advocaten, French lawyer François Hascoet and his Paris-based firm, as well as certain directors of the claim foundation (“Stichting UVDTAB”) they represent.
Stichting UVDTAB is a mass claims foundation incorporated in The Netherlands to claim personal injury damages from Trafigura, following the Probo Koala incident of 2006. Stichting UVDTAB has sued Trafigura in Amsterdam, initially claiming EUR277 million in compensation.
During the court proceedings in first instance, it was established that many of the documents Stichting UVDTAB has submitted to the court to support its claim have been forged. The district court of Amsterdam on 30 November 2016 declared the Stichting inadmissible in its claim, also giving weight to Trafigura’s submissions with respect to the forged documents. While the Stichting has appealed this decision, Trafigura has decided to claim costs the company incurred to defend itself in the proceedings to date. In addition to the foundation’s lawyers, Trafigura will also hold the foundation and certain of its board members liable.
James Powell, Trafigura’s Global General Counsel, commented:
“Trafigura regrets the impact of the Probo Koala incident of 2006 both real and perceived. It has paid over EUR200 million to support complete remediation as well as compensation payments, albeit without any admission of liability.
.We believe that a “claims industry” has developed involving Ivorian foundations, their lawyers or their mainly UK-based funders that are bringing unsubstantiated and possibly fraudulent claims. We will challenge all such claims. If claims are fraudulent we will hold accountable those who have promoted, supported and advocated such cases.”
All defendants involved received notice of a liability claim by Trafigura in the course of yesterday, Monday 25 June. Trafigura expects a court hearing by September.
Notes to editors
For more information, please contact
Ingo Heijnen or Ariën Stuijt
Background on Trafigura’s claim
During the proceedings brought by UVDTAB, Trafigura repeatedly expressed its concerns with regard to the nature of the documents to the legal team of the Stichting UVDTAB. Yorick Boendermaker, the Dutch lawyer of the Stichting, will be sued for committing an unlawful act against Trafigura because he submitted copies of forged documents, while resisting disclosure of the originals on behalf of his client. He continued to rely on these documents without any reservations, despite repeated warnings from Trafigura. By doing so, he facilitated the Stichting’s abuse of procedural law. Boendermaker was also fully aware of a criminal complaint Trafigura had submitted accusing his client of forgery, in May 2016.
François Hascoet, the French principal law firm of the Stichting, was the first to submit the original claim of the Stichting against Trafigura, together with the forged documents, summoning Trafigura to appear before court on February 2015. Hascoet commissioned Boendermaker on behalf of the Stichting to represent the Stichting in the Dutch proceedings. François Hascoet and his law firm will also be held liable by Trafigura for submitting forged documents, because they acted in violation of the applicable standards of due care.
UVDTAB is one of two mass claim foundations who have now lost their proceedings against Trafigura in the court of Amsterdam. Stichting VDTCI, another foundation claiming to represent Ivorian victims of the Probo Koala incident, also lost its case in first instance against Trafigura. In this case also, the judges had serious concerns whether the people who were allegedly represented by that Stichting would benefit at all from the proceedings brought against Trafigura.
Background on Probo Koala case
In 2006, Trafigura chartered the tanker Probo Koala to transport 84,989 metric tonnes of coker naphtha, a gasoline blendstock. After carrying out a caustic washing procedure on board known as “Merox process”, the vessel needed to have a small amount of residual waste from the process (called “slops”) treated. The discharge and treatment of slops and waste materials from all vessels, including crude oil and product carriers, is an everyday occurrence around the world.
On 2nd July 2006, Trafigura attempted to have the waste treated in Amsterdam but eventually disagreed on the revised price proposed by the contracted company, APS. After a failed attempt in Lagos (Nigeria), Trafigura called for an experienced port agent in Abidjan (Ivory Coast), WAIBS, to select an authorized company there. WAIBS recommended Compagnie Tommy, a recently licensed local operator. The discharge of slops to Compagnie Tommy was conducted with the approval of the port authorities and in the presence of both the police and customs officials.
On 19th August 2006, in flagrant breach of their obligations, Compagnie Tommy dumped 528m3 of slops at 17 or 18 locations in Abidjan. From 21st August 2006, residents started to complain of a terrible smell and from 5th September, while at the same time free admission to hospitals was announced by a government official, tens of thousands visited local hospitals. It was soon alleged that the slops had caused serious injuries however such allegation have yet to be credibly substantiated .
This incident was brought before numerous civil and criminal courts, mainly in the Ivory Coast, in the United Kingdom and the Netherlands. Judgements have been rendered and settlements have been made(without any acceptance or admission of liability). Trafigura notably paid USD 198 million to the Government of the Ivory Coast to fund complete remediation as well as compensate the Ivorian government and any victim; paid EUR 1 million [in fines] in the Netherlands; and GBP 30 million to settle claims by 29,614 claimants made in the UK. These claimants were represented by the London law firm Leigh Day &Co. That firm’s costs were also paid as part of the settlement (an undisclosed sum in excess of GBP 30 million). Part of the money paid to Leigh Day & Co to distribute in the Ivory Coast never reached its intended beneficiaries and Leigh Day has subsequently be found liable in relation to that failure.
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Founded in 1993, Trafigura is one of the largest physical commodities trading groups in the world. Trafigura sources, stores, transports and delivers a range of raw materials (including oil and refined products and metals and minerals) to clients around the world. The trading business is supported by industrial and financial assets, including 49.6 percent owned global oil products storage and distribution company Puma Energy; global terminals, warehousing and logistics operator Impala Terminals; Trafigura's Mining Group; and Galena Asset Management. The Company is owned by around 600 of its 3,935 employees who work in 62 offices in 35 countries around the world. Trafigura has achieved substantial growth over recent years, growing revenue from USD12 billion in 2003 to USD136.4 billion in 2017. The Group has been connecting its customers to the global economy for more than two decades, growing prosperity by advancing trade. Visit: www.trafigura.com