Reflections from the inside on Motto v Trafigura
So it's finally over! Just as we were girding our loins for the next round of preliminary issues in January and something at last resembling detailed assessment in February and March, the parties thrashed out a settlement just before Christmas. And so it was that a very long chapter in the lives of Leigh Day, Practico, counsel and ATE insurers First Assist has drawn to a close. We can all move on to the next set of challenges with a clean slate.
It is worth reflecting on the chronology. The detailed assessment (had it gone the distance) would undoubtedly have outlasted the duration of the case itself. The matter settled in the summer of 2009 after a three year battle by Martyn Day's team to secure compensation for over 29,000 Ivorians affected by the dumping of toxic waste around Abidjan.
In record time our firms worked together to produce a generic bill and 400 sample individual bills which were served on 8 December 2009. The generic bill alone included 55,000 items and was compiled over a highly intensive 10-week period. My colleague Kevin Wonnacott managed that task expertly as we were plunged into uncharted territory - learning and then applying on the hoof features of Excel that usually stay hidden under the bonnet. Had Excel itself not undergone a major overhaul with its 2007 upgrade, even that powerful tool could not have coped with the file sizes or the plethora of filters that we had to create and deploy.
The biggest compliment for that drafting work was paid tellingly if tacitly by our opponents. It is no secret that the Defendants in this case took every conceivable technical and legal point against the claimed costs. If they could have found a way to challenge the conformity of the bill to CPD43 it is a fair bet they would have, but all that came and went was a short-lived complaint that the service of notice of commencement had been premature. No substantive challenge to form was ever made.
Looking at the most important takeaways emerging from Motto;
The first is the technical innovation in bill production, which we have further refined over the last two years and are making available to an increasing number of our clients. The skeleton of a bill of costs can now be created in Excel using data pulled direct from our clients' practice management systems. This enables us to focus more quickly on the quality of the descriptions of time and to process work faster, especially on larger cases.
The second issue has been the reinforcement of our view that the need for budgetary control and costs management is paramount if detailed assessment is not to be marginalised as a way to resolve costs disputes. The shortcomings of detailed assessment under the current regime were startling when applied to such a large case as Motto. There were simply no tools available to the court to assist in cutting through the woods of the major quantum issues, even after many of the issues of principle had been resolved.
At Practico we are working hard to foster standards in costs reporting that will help to see these tools develop so that the time-savings in bill production can be extended to time-savings in dispute resolution through improved quality in the information parties and the courts have in front of them to support the big decisions on the numbers. That, after all, is the only thing that really counts.