Motto & Ors v Trafigura Ltd & Anor

Motto & Ors v Trafigura Ltd & Anor

The Defendants’ letter of 2 December 2009, stating their costs as £14,634,160, constitutes certification of their costs for the purposes of the ATE insurance policy. The premium must be calculated on this figure, as the policy requires the use of the actual costs as certified by the opponent’s solicitor. The Defendants’ later attempts to reduce the figure do not override the certification already provided. If the figure was wrong, the policy would require use of the Claimants’ costs, which would result in a higher premium, but the Claimants have limited their claim to the premium based on the Defendants’ certified figure.

Parties
Claimants: Yao Essaie Motto & Ors; Defendant: Trafigura Ltd; Defendant: Trafigura Beheer BV
Jurisdiction
England and Wales
Judgment Date
05 August 2011
Procedural Posture
Costs Determination (post Judgment) / Supplemental Judgment on ATE Premium Calculation
Outcome
Application dismissed; premium to be calculated on £14.6 million certified costs.
Legal Topics
ATE Insurance Premium, Certification of Costs, Reasonableness of Costs, Interpretation of Insurance Policy
Civil Procedure Costs ATE Insurance Premium Certification of Costs Reasonableness of Costs Interpretation of Insurance Policy

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Parties

Yao Essaie Motto & Ors

Claimants

Trafigura Ltd

Defendant

Trafigura Beheer BV

Defendant

Procedural Posture

Costs Determination (post Judgment) / Supplemental Judgment on ATE Premium Calculation

Legal Issues

  1. 1 What is the appropriate figure for the Defendants’ costs for the purpose of calculating the ATE insurance premium?
  2. 2 Does the Defendants’ certification of costs bind the calculation of the premium?
  3. 3 Should the premium be calculated on actual costs or on a reduced, reasonableness-based figure?

Ratio Decidendi

The Defendants’ letter of 2 December 2009, stating their costs as £14,634,160, constitutes certification of their costs for the purposes of the ATE insurance policy. The premium must be calculated on this figure, as the policy requires the use of the actual costs as certified by the opponent’s solicitor. The Defendants’ later attempts to reduce the figure do not override the certification already provided. If the figure was wrong, the policy would require use of the Claimants’ costs, which would result in a higher premium, but the Claimants have limited their claim to the premium based on the Defendants’ certified figure.

Court Disposition

Application dismissed; premium to be calculated on £14.6 million certified costs.

Orders

  • The ATE insurance premium shall be calculated using the Defendants’ certified costs figure of £14,634,160 as stated on 2 December 2009.
  • No further reduction to the Defendants’ costs figure for premium calculation is permitted.