VOLKSKRANT RESPONSE

By way of opening remark, Macfarlanes (both on its own behalf and on behalf of Trafigura) categorically refutes any allegations of misconduct in this matter.

Specifically, Macfarlanes and Trafigura deny any involvement, whether direct or indirect, in what you describe as "bribery and influencing of witnesses".

Not only would such conduct be grossly unethical, it would have been illegal and it would certainly have constituted serious professional misconduct by Macfarlanes. The suggestion that this firm or one of its partners would involve itself in such misconduct is as absurd as it is defamatory.

Furthermore, for reasons we touch on below, even if Macfarlanes or Trafigura had been willing to misconduct ourselves in this way (which we were not), it would have been completely illogical and counter-productive for us to have done so given the circumstances of these events.

We note that you acknowledge that these allegations are extremely serious. We trust, therefore, that if you consider yourself to be a responsible journalist, rather than pursuing a pre-meditated agenda against Trafigura, you will consider your position very carefully before publishing allegations about Macfarlanes which are indeed very serious, malicious, gravely defamatory, false and completely inconsistent with the previous course of conduct between the parties.

You state in your email that these are similar to allegations made last year. For the record, those allegations were also wholly without foundation. Indeed, they were formally withdrawn by the Claimants and their solicitors, Leigh Day & Co, in the Abidjan Personal Injury Group Litigation proceedings in September 2009.

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Given your misapprehension of the true position and the fact that, regrettably, certain individuals have chosen to provide you with dishonest and malicious allegations, it is important that we address your questions. It is equally important that you carefully consider our responses and weigh up how much reliance, if any, can be placed upon these false and malicious allegations.

In the event that you still decide to publish these allegations, we require you to ensure that you include our response to each allegation at the point in which it appears in the article.

You will appreciate that, given the seriousness and falsity of what you are seeking to

allege, Macfarlanes and/or Trafigura will have no alternative but to commence legal proceedings without further notice if your story does not comply fully with the basic principles of truth, balanced reporting and responsible journalism.

The responses below provide extracts from privileged materials. However, this is not intended to waive in any way the privilege in the underlying materials.

Turning to your questions:

1. Is it true that Mr .... and/or other employees from Macfarlanes, has negotiated with truckdrivers from Ivory Coast regarding their statements on the events in Abidjan in August 2006?

There were no "negotiations" with the tanker drivers.

We can confirm that a partner of Macfarlanes, met with the tanker drivers

between April 2008 and February 2009 to discuss their recollection of the events in Abidjan in August 2006 and, eventually, to prepare formal witness statements for potential use in the Abidjan Personal Injury Group Litigations proceedings in London.

Other employees of Macfarlanes also met with the drivers at various times.

The objective from the outset had always been (and remained) to determine the true and accurate version of events surrounding the disposal of the slops from the Probo Koala in and around Abidjan in August 2006.

As you will appreciate, a relevant issue in the Abidjan Personal Injury Group Litigation proceedings was the question of where (and, for example, on to what kind of surface - permeable or impermeable, etc) each tanker-load of the slops from the Probo Koala was dumped, when and in what quantities.

This information was relevant to enable the independent experts to consider, for example, the volume of vapours which might be emitted from the slops, the rate of evaporation and dispersal and, therefore, the radius and likely timescale of potential human exposure to the vapours/odours.

Clearly, among the people best-placed to give this information were the tanker drivers themselves.

2. Did Mr. _and/or other employees from Macfarlanes meet one of the drivers in Marrakech? If so, what was the reason for this consultation and what was the role of the Congolese intermediary?

••••• met •••••••• (also known as~) in Marrakech in April 2008.

The reason for the meeting was to discuss with. his involvement in the Probo Koala operation - as a tanker driver - in August 2006.

As part of the Court proceedings, Macfarlanes had been investigating the events in Abidjan since November 2006 and had met many individuals - some of whom had stated that they had been involved in the unloading operation at the port. However, in every case their evidence had turned out to be either false or second or third hand. For example, one individual had posed as a tanker driver, but when we investigated further, it became clear that the tanker driver whom he claimed to be had recently died (due, as _ subsequently confirmed, to causes entirely unrelated to the slops).

We, therefore, were always cautious with whom we spoke and we made every effort to crosscheck information provided to us by individuals to verify its reliability and accuracy.

Prior to the meeting in Marrakech,. hac! been introduced to an intermediary in Abidjan and his recollection of events to the intermediary had been sufficiently detailed to suggest that he had a central and personal involvement in the operation and that he knew the organisers of the operation from Compagnie Tommy and the other tanker drivers involved in the operation.

In addition,_had informed the intermediary that he had given an interview to an Abidjan newspaper, "Le Patriote" for the 14 September 2006 edition in which he had spoken fully about

the operation, albeit anonymously (under the initials e' for . A copy of

the article is attached together with translation.

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'!LP: It's been said that a tanker driver died from poisoning. Have you had your health checked?"

In that article, not only did. describe the events - but for the purposes of the allegations which you have made - the following exchange taken from that article would appear to be extremely relevant:

• replied:

.: No we deny this story because we all know each other. And I can assure you that everyone, drivers and co-drivers feel well"

This independent exchange with "Le Patriote" took place some 18 months before Macfarlanes ever met _

_ had insisted to the intermediary that it was too unsafe for him to be seen meeting English lawyers representing Trafigura in Abidjan. He made clear that he had material concerns as to his personal safety. He spoke about how there had been a hunt for the drivers following the incident and how dangerous it had been to be a driver in the weeks following. In "Le Patriote" article, one of the other drivers had also made clear such concerns:

'.: Yes. We've seen the communique in the papers. But we are scared. Because we know that Ivory Coast does not have the rule of law."

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Accordingly, the meeting took place in Marrakech, Morocco, a French speaking country which did not require a visa for an Ivorian national.

The meeting took place over 36 hours and covered all aspects of the operation and its background

to determine knowledge and involvement and reliability. Given his comments - which

were later against available records of the events - it was decided to meet with him again

to see what further details could be obtained and to satisfy ourselves as to his reliability.

At that stage there was no intention of seeking a formal witness statement; we were seeking details on the operation overall - what was dumped, where it was dumped, when it was dumped, why it was dumped and in what quantities. This information had been widely reported in a variety of ways - often inconsistently and unreliably. It was, therefore, helpful for us to understand exactly what had happened to the slops following their discharge from the Probo Koala - to be able to compare and contrast such information against the reported information.

The following meetings with _took place in private and discreet locations in Abidjan, as. had made no secret of the fact that he was afraid of both the authorities in Abidjan and also •••••• who he had said had organised the illegal dumping of the slops. Given the similar comments about the safety of the drivers in "Le Patriote" article, and given our own experiences of seeking information in Abidjan, we believed him when he expressed these concerns as to his safety.

However, we were always cautious in our dealings with. - as he was with us. We needed to ensure that his evidence was correct and could be relied upon. Conversely, he was clearly cautious about meeting with and providing information to Trafigura's legal team.

Over the following meetings, it became evident that _had not given us his full name and that when we first met he had also not told us about every trip he had made on 19 and 20 August 2006. Over the course of the meetings, we were gradually able to point out to him discrepancies in his

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version of events and we had to stress to him on a number of occasions that we wanted the full truth, not simply a partial version of events.

This process of verifying the information that. and the other drivers provided continued through to February 2009.

To put this in context, if as alleged, we had we only been interested in seeking a witness statement that said what we considered to be helpful to Trafigura - whether true or false - this process could have been significantly shorter and significantly less legal costs would have been incurred. However, we were at all times seeking to obtain a true and full version of events and we carefully took time to piece together the various elements of the information and to test that information with _and also the other drivers over a period of nearly one year. It was vitally important for us to be able to know that the information was reliable - hence, the lengthy period it took to interview Adja and the other drivers in a painstaking and careful way. Without knowing that the information was reliable, it was worthless to us and Trafigura.

The intermediary was a French speaker with extensive knowledge and experience of Abidjan. He was able to seek information by speaking to individuals who would never have been willing to discuss matters with English lawyers representing Trafigura.

3. Is it true that in 2008 several drivers were invited (and were paid for their travel and expenses) to Burkina Faso in order to prepare a statement?

_ was unable to provide details of every location or timing or volume of where the slops were ~ped. However, after a number of meetings with him, • eventually indicated that he

could try to introduce the legal team to a number of the other tanker drivers - four in the first instance - involved in the operation. (It transpired that _had been involved in a local drivers' union prior to August 2006 and he was relatively well-known within the tanker driver community in Abidjan).

_made clear that these four drivers were also extremely nervous and reluctant to meet English lawyers in Abidjan to discuss the August 2006 events. They were primarily nervous because of

the influence of and also the authorities; all were worried about their own

personal safety.

At"suggestion, the meeting was arranged for Ouagadougou in Burkina Faso (We understand that one of the four drivers came from Burkina Faso).

The drivers, including .caught a train that took 24+ hours to reach Abidjan. It was an uncomfortable and unpleasant journey, and one of the drivers,

developed malaria whilst in Ouagadougou. We confirm that the drivers' travel accommodation expenses were paid for this trip. This was inevitable given that we wanted to discuss the events with the drivers and we had to ensure that their safety was not endangered.

The five drivers stayed at a local house and meetings took place there and at a nearby hotel over 2-3 days. The drivers were interviewed either alone or in pairs to avoid there being a concocted "group story".

Again, the purpose of the discussions was not to obtain a witness statement but solely to discuss the events and again to understand - what was dumped, where it was dumped, when it was dumped, why it was dumped and in what quantities. We were also assessing whether these individuals were directly involved in the operation and whether their version of events was reliable.

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The drivers were all extremely cautious at this initial meeting and were clearly concerned as to how their information would be used and whether they would be identified.

Following this initial meeting, at which there were a number of discrepancies about timings and exact locations of tanker discharges (albeit their stories were each credible and logical), further meetings were arranged with them over the coming months. Having met us, they were agreeable to meeting in Abidjan; we were able to assure them that there would be no use or publication of any of their information without their prior approval and that we would maintain the strictest confidentiality in their names.

It was not easy to continue the meetings as the drivers were clearly nervous of providing information to Trafigura. However,_was able to reassure them that their safety would be paramount.

In terms of understanding why _ and the other drivers were willing to provide information, _had made clear from the outset that he would be willing to make himself available to assist Trafigura if this would enable the true story of the events in August 2006 to be told.

Prior to discussing the potential for a witness statement (and while we were still simply collating the information on the events) ehad made clear that he wanted to write a book which would set out the "true story". He had found it very difficult to continue working full-time after the events and he knew that a number of the drivers involved in the operation had been unemployed since August 2006. He wanted the book to tell the full story - so that the drivers would no longer be viewed as "the perpetrators" of the incident in Abidjan and so that they could return to work without fear for their safety. As he stated in "Le Patriote" he wanted to prove the innocence of the drivers and to show that "they were tricked [by Compagnie Tommy] and made a mistake".

Given his previous position with a union and given that he was the natural "leader" of the drivers, he was able, over time, to persuade the other drivers to assist in providing the details of the operation - in return for their identities remaining private and in return for. being able to use their stories at a later date for his book.

He discussed many times the book with the intermediary and, at one stage in 2009, he was given the details of an online publisher by the intermediary, so that he could make his own arrangements for the book.

_ also discussed the potential for a book with Mr _, of Macfarlanes, who told him that the book would have to wait until after he had given evidence.

Macfarlanes can categorically confirm that at no stage did ~ver discuss money with us nor did we ever discuss or suggest possible payments to.in return for providing any information (whether true or false) by way of the witness statements.

With each driver the approach was exactly the same. We would carefully and slowly ask the driver to tell us what had happened, where they had loaded, where and how much they had discharged and when they had discharged. These questions were repeated slowly and carefully throughout the meetings on each of the occasions we met. It was a painstaking exercise - but it was necessary to understand if their recollections were consistent (between meetings and between drivers) and to determine if the information was reliable.

The drivers frequently found such meetings to be boring, as we would cover the same ground as we had a number of weeks previously - simply to test their recollection of events and to determine if they were telling the truth. We also questioned them against information that had been provided by other drivers, as well as against information available from the various reports

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on the incident (and also the tanker receipts from the port and the weighbridge receipts from Akouedo). As we have stated, it was a lengthy, detailed and careful exercise as both Macfarlanes and Leading Counsel needed to understand what had happened and we also needed to be certain that we could rely on this information.

It would have been extremely damaging not to have gone to such lengths. If we had submitted information - whether in witness statements or otherwise - to the Court which the Claimants' legal team could easily have disproved, this would have materially (and publicly) undermined Trafigura's defence. This was something we were always at pains to avoid - as a law firm would be in any court case.

As explained above, the purpose of the discussions with each of the dri vers was to get a good understanding of what was dumped, where it was dumped, when it was dumped, why it was dumped and in what quantities.

We did not need detailed information from the drivers on the composition of the slops. The drivers could only ever describe the colour and smell of the slops, not its chemical composition.

Trafigura had also appointed expert chemists who had reviewed and analysed the (Dutch) NFl Report on the detailed composition of the slops. We believe that you are familiar with the NFl Report, which is before the Court in Amsterdam. It was the role of such expert chemists to provide information to the Court on the composition of the slops; it was not the role of the drivers. Consistent with this, at no stage did the expert chemists ever rely on any information provided by the dri vers in their analysis of the slops.

Similarly, we did not need detailed information from the drivers on their health or the consequences of their contact with the slops, albeit we obviously asked them on a number of occasions if they had suffered any symptoms following their contact with the slops. They each told Macfarlanes that they had not suffered any symptoms, although they did confirm that one apprentice was covered in the slops during the loading operation and had to go home.

Trafigura had also appointed medical experts (in toxicology and tropical medicine) who had reviewed and analysed the medical details provided by the Claimants. It was the role of such medical experts to provide information to the Court on the likely effects of the slops on humans generally and on the Claimants specifically; it was not the role of the dri vers to demonstrate the effects of the slops. Consistent with this, at no stage did the medical experts ever rely on any information provided by the drivers in their analysis of the effects of the slops - either generally or specifically.

4. Can you confirm that Mr .... was present when the statement was signed in Abidjan, and that the drivers received 400,000 CFA each?

The drivers each signed a witness statement in Abidjan - at a meeting room in the Hotel Tiamain February 2009.

The witness statements were signed after a number of meetings in the intervening months with the drivers - generally alone or in pairs - to avoid significant collusion. Only on one occasion towards the end of the process were all the dri vers questioned together to make sure that each believed the story that the others were telling and to make clear where they thought there were errors - in timing or amounts, for example.

The focus of all the meetings had been on the events - never on the composition of the slops or the health of the drivers. The composition of the slops was a matter for detailed expert evidence and to a large extent, the health of the drivers was irrelevant, as the English Court would only ever

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focus on the health of the specific Claimants, not the health of the population generally or these particular drivers.

At no point did anyone at Macfarlanes or on behalf of Trafigura ever propose or intimate to the dri vers how they should answer questions regarding the slops or the effects of the slops on their health, or for that matter any other question.

Given the care we took in obtaining their version of events - and the lengths we went to in order to verify the drivers' version of events - quite apart from the obvious fact that it would have constituted serious misconduct on the legal team's part aud it is not something Macfarlaues would ever remotely consider doing - there would simply have been no logic in asking the drivers to make auy false statements about either the slops or their health. As we have stated above, such statements by the drivers on the composition of the slops and/or their health had no value to the English Court proceedings; both of these matters were subject to detailed and extensive independent expert evidence unrelated to the drivers' evidence.

The drivers were not Claimants and only the evidence of the professional experts would have been relevant to the composition of the slops and any effects from exposure to the slops. However, at no point did the drivers tell Macfarlanes that their health had suffered. On the contrary, they were each consistent in saying that, although the slops had smelled, they had not been affected in August 2006 or subsequently. The drivers freely attributed the reaction of the population in Abidjan to the smell of the slops, the offer of free health care and, subsequently, the offer of compensation.

Eventually, it was decided by Macfarlanes and Leading Counsel that the drivers' information on the events - what was dumped, where it was dumped, when it was dumped, why it was dumped and in what quantities - was reliable and could be of assistance to Trafigura's case. However, this was a difficult decision, because (1) the information was not essential, (2) there were concerns as to the safety of the drivers in providing the information and (3) there was a material doubt as to whether it would be possible to obtain a visa for_and/or any other driver to enter the UK to give evidence.

However, to keep Trafigura's options open, it was agreed with Leading Counsel that witness statements should be obtained from each driver - to show how the operation had taken place - but that such witness statements would only be used if the evidence could be given anonymously.

Macfarlanes undertook to the dri vers not to use their information if their identities had to be revealed. Trafigura fully agreed with this approach.

The witness statements were not simply signed in February 2009, they were also notarised. This was a deliberate step proposed by Macfarlanes and Leading Counsel in order to make absolutely clear to each of the dri vers the formality of the process, the seriousness of their witness statements and the fact that they may be used in formal Court proceedings. (It was never a requirement for the English Court that the witness statements be notarised).

To demonstrate our concems that the witness statements had to be both accurate and must reflect the individual's own recollections of events, in advance of the meetings in February 2009, Macfarlanes emailedtheintermediarywhowasmeeting~mtheSunday.prior to our arrival. The email expressly stated in relation to_"draft witness statement:

"It is important when you meet with him r_1 on Sunday morning to stress that he has to be 100% happy with not only what is saidja:Zy in French but also how it is phrased. The statement will represent his evidence and he must be absolutely certain that it is correct."

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The email also expressly stated that it would be necessary to read each draft witness statement slowly to each driver to ensure that they fully understand what they were about to sign. The email also detailed how.had to explain to the other drivers the reason for the notary, that their identities were to be kept private and that there was no intention of releasing their identities around Abidjan.

_ and another lawyer from Macfarlanes attended the meetings at which the witness statements were eventually signed and notarised. We can confirm that the witness statements were read to each of the drivers in French and, where necessary, in Dioulla - to ensure that each driver fully understood what was happening and that the statement was to reflect their own understanding of events.

Indeed, great care was taken in ensuring that the drivers did understand what was happening and did stand by their witness statements. This was an important exercise - and we had to satisfy ourselves - before ever submitting the witness statements to a Court - that they were reliable and that they would stand the detailed scrutiny of the Claimants' legal team.

Contemporaneous notes were made by a Macfarlanes lawyer at the February 2009 meetings. These clearly record that Mr stated that it was essential that the drivers understood the contents of their witness statement, that they each agreed with their witness statement and that they were each free to make any changes to their witness statement that they wanted. The contemporaneous notes record that changes were made to a number of the witness statements at the request of the drivers and each revised witness statement was then signed before the notary.

Macfarlanes went to such lengths to ensure that the witness statements did reflect the drivers' own evidence and so that we could ensure before the English Court that the witness statements were, as far as possible, reliable and truthful.

We treated the witness statements from the tanker drivers in exactly the same way that we would have prepared and finalised witness statements from any other witness for an English Court case. The witness statements were intended to be relied upon in Court (if they could be kept anonymous) and so we had to be perfectly confident that their contents were correct and could be supported.

The drivers were paid for their travel and meal expenses and any loss of earnings. Macfarlanes did not give the drivers 400,000 CFA each following this meeting, and neither did anyone else on Macfarlanes' or Trafigura's behalf. We would not have authorised any payment, except

for legitimate expenses incurred in attending the meetings over the three/four days. The drivers had never requested such a payment from Macfarlanes or Trafigura and no such payment was ever suggested or even intimated by Macfarlanes or Trafigura.

By February 2009, it had been determined by Macfarlanes and Leading Counsel that probably only~ould give evidence in London (subject to obtaining a visa), but only then on condition that his name and identity, and that of all the other tanker drivers could be kept confidential and anonymised.

In the end, however, the use of witness statement evidence in an anonymous way was opposed by Leigh Day & Co, the Claimants' lawyers. Macfarlanes and Leading Counsel, therefore, agreed that the drivers' witness statements should not be adduced at all for the purposes of the proceedings. It was considered that the safety and welfare of the individual drivers was of paramount importance.

Macfarlanes had given each driver an undertaking that we would not use their witness statement unless their identities could be protected. Trafigura completely agreed with such an approach and

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there was never any pressure to use the evidence in any way that would compromise the safety of the individuals.

We should, however, add that, by the Spring/Summer of 2009 Macfarlanes and Leading Counsel felt confident that Trafigura had sufficient information as to the location of the dump sites from other sources in order to give the Court an accurate picture of where the slops had been dumped, when and in what volumes, without needing to refer to the drivers' evidence. The drivers' evidence, therefore, whilst helpful and consistent with the records, was not essential.

5. Is it true that Mr. andlor other employees from Macfarlanes promised the truckdrivers

an extra amount of 150 million CFA, which they would receive after they would have to come to London to repeat or explain their personal statement?

No.

Neither Mr~nor any employees from Macfarlanes at any time promised the drivers any money or intimated that money would be paid for providing evidence - whether true of false.

All employees of Macfarlanes who met with and interviewed the drivers are each willing to confirm categorically that at no stage were any payments or inducements offered to the drivers to provide evidence or to make any false or misleading statements and that the witness statements contained the true and honest recollections of each of the drivers.

It was clear, given the seniority, experience and quality of the Claimants' Leading Counsel who would cross-examine any of the drivers in Court, that one inevitable question would have been "Have you ever been paid or induced to give the evidence in your witness statement". In addition, any driver would have been asked - perhaps repeatedly - whether he stood by the evidence in his witness statement.

As such, it would have been an utterly pointless exercise for Macfarlanes or Trafigura to have paid or induced the drivers to provide the witness statements. Indeed, the provisions of such witness evidence on the basis of promised payments - as alleged - would have totally undermined the Trafigura position in the proceedings and this was never considered by Macfarlanes, Leading Counselor Trafigura at any stage.

We also knew that payment of a witness to give particular evidence was not permitted under the English Court Rules.

One, therefore, has to ask the question why would such alleged payments have been offered?

Although the witness statements were potentially helpful for Trafigura's defence, they were certainly not essential or central to any such defence. Any illegality or lack of care in producing such witness statements, conversely, would have materially prejudiced Trafigura's defence in the proceedings. There was absolutely no benefit to be gained (but there would have been a huge risk) in Macfarlanes or Trafigura seeking to pay for evidence of any kind in the proceedings.

The drivers were only ever paid their expenses - loss of earnings and travel and meal costs for their meetings with either Macfarlanes or the intermediary.

Consistent with the fact that the drivers were never promised any money in return for providing the witness statements, and that the witness statements were a truthful recollection of the events, following the settlement of the Abidjan Personal Injury Group Litigation proceedings, on 2

October 2009, unsolicited,_ wrote to Mr of Macfarlanes to state:

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"First let me salute you for the result achieved during this whole painful situation.

A result which for us lorry drivers means hope, and is also a victory over the great lie by our lvorian brothers ....

My sincere regards to all the Trafigura managers, who brought all their forces to bear to reveal this truth, a truth which at our level has been hard to find.

Personally I was delighted to work with you, on this case, which as far as I am concerned was to reveal the truth for all to see. God has finally let most people know what really happened that Saturday and Sunday in Abidjan. Everybody will know the truth in the days to come. "

.points out in his letter that going to England was to have been a dream come true and he was to use it after the evidence to find partners for his book on the events. At no stage in the letter does he demand any money from Macfarlanes or Trafigura.

_ also expresses the wish to maintain relations between himself and which,

we would hope that you would accept, is wholly inconsistent with a man who has just failed to receive a "promised" payment of 150 million FCFA (229,674 Euros).

150 million FCFA (229,674 Euros) is a staggering amount of money. It bears no relation to the relevance or importance of the drivers' witness statements and this amount - or any amount - was never considered by Macfarlanes or Trafigura at any stage during or after the Abidjan Personal Injury Group Litigation proceedings. To place the amount in context, it dwarfs the amount of fees incurred by the chemistry or medical experts appointed by Trafigura for the proceedings. These experts were a central and essential part of the proceedings.

This figure has been plucked out of the air by. and the other drivers and is, self-evidently, a malicious and false allegation designed deliberately to harm Macfarlanes and Trafigura.

6. Was Mr. -. and/or other employees from Macfarlanes, involved in, or consulted on a second payment of 1.5 million CFA per driver, related to a second statement that was signed on April 13 this year in Abidjan?

Mr _ was aware of the payment of 1.5 million FCFA (2,287 Euros) to each of the drivers in April this year. These payments were entirely legitimate and were made in the following circumstances.

As set out above, it had been a condition of the drivers' witness statements - and Macfarlanes had provided to each of the drivers an undertaking - that the witness statements would never be used except on an anonymous basis in the Abidjan Personal Injury Group Litigation proceedings without the drivers' prior consent.

However, following October 2009 • had become increasingly upset with the intermediary at the fact that neither he nor the drivers had been paid any money for providing the witness statements whilst the Claimants in the proceedings (who the drivers considered had made false claims) had become entitled to receive amounts under the Settlement Agreement.

None of the drivers had been consulted or informed about the Settlement Agreement which was signed on 8 September 2009. It appears that the drivers were (perhaps understandably) aggrieved that such Claimants had received money when the drivers considered that the Claimants were not genuine and when the drivers themselves had received no reward from Macfarlanes or Trafigura.

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On 23 September 2009,. wrote to the intermediary to complain:

"First I'm sorry to hear that Trafigura is giving money to liars. 1 thought Trafigura coming would help us make the truth prevail once andfor all. 1 didn't like seeing that this project came to nothing, but I understand. We're living proof these wastes can't kill .. .! have to tell you that this agreement has made me sick to the stomach because now these men will think that we're guilty, it was very important for Ivorians to know it was a disgusting charade by the patients and doctors."

The intermediary eventually broke off all communications with_ having made clear that there had never been any promise of money for providing the information and that this would have been illegal under English law. The intermediary also pointed out that~motivation all along had been to establish "the truth" and that this had, to a large extent, been established it had been publicly agreed that the slops had not killed or caused serious or long term injuries.

It was against this breakdown of relations that in early 2010 that we were informed by the intermediary that he had spoken with _ who was seeking to "blackmail" Trafigura in to paying him money by changing his story and claiming to the media and others that (1) he had been injured as a result of his exposure to the slops and (2) he had been paid to state the opposite by Trafigura.

This was clearly a lie. However, it also placed Trafigura in a difficult position, because if_ decided to publicise these false statements, on the one hand Trafigura would need to be permitted to show that it had behaved properly and demonstrate the truth of the drivers' witness statements, but on the other hand, because of the undertakings that Macfarlanes had given to all of the drivers, Trafigura would be unable to use the witness statements without the consent of the other drivers. As such, there would have been significant reputational damage to Trafigura before it could have defended itself.

As such, the intermediary contacted the other drivers when ... refused to withdraw his threats. Having spoken with the other drivers, it was decided that theoii1y way to protect Trafigura was

to go back to the other drivers and ask as many of them as possible to agree to allow Trafigura to use their witness statements to counter any untruthful statements made by _. It was considered that the ability to use such statements from even just three or four of the other drivers would enable Trafigura to counter any false claims by_

As such, after discussions over a number of weeks between the intermediary and the drivers, it was eventually agreed that they would allow Trafigura to use their 2009 witness statements for any purposes and at any time on an open basis and without needing their consent on each occasion. However, in return for agreeing to lift their right to confidentiality/anonymity - and thereby potentially exposing themselves - the drivers demanded payment.

Reluctantly, we agreed to make a payment of 1.5 million FCFA (2,287 Euros) to the drivers, in return for free and unrestricted use of their witness statements - on the basis that (1) the drivers had never previously been promised any payment (2) the witness statements had not been used in the Court proceedings and (3) such Court proceedings had now been settled.

However, in return, Macfarlanes required each driver to confirm expressly in writing that they stood by their 2009 witness statement and to state that it remained their true and honest recollection of events.

In the end, all the drivers signed the document and allowed Trafigura free use of their witness statements - even including ~- who informed the intermediary that, given the position of the other drivers, he was willing~onger to proceed with his threats. (Clearly, this has turned out to have been a lie bye).

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Logically, it would appear strange that the drivers agreed to release their witness statements for use in such a way for only 1.5 million FCFA (2,287 Euros) if, as now alleged, they had originally been promised 150 million FCFA (229,674 Euros).

As is made clear above, the 1.5 million FCFA (2,287 Euros) payment was given solely in order to enable Trafigura to lift the confidentiality/anonymity restrictions over the 2009 witness statements should that prove necessary. The necessity for this was prompted solely by our learning in 201 0 that_ was seeking to blackmail Trafigura by publicising completely false statements about his evidence. At no stage before then had any payment (over and above reimbursement of legitimate expenses) ever been discussed or remotely contemplated by Macfarlanes or Trafigura - or demanded bye or the other drivers.

Consistent with this, we ensured that (1) each of the documents with the drivers lifting the confidentiality/anonymity restrictions were in writing, (2) the payment of the 1.5 million FCFA (2,287 Euros) was clearly and unequivocally recorded on the face of the documents, (3) the documents clearly record why they were being signed; namely to record that the original evidence had been correct and that (contrary to" threats) the drivers had suffered no ill health and had not been induced to provide the witness statement by any offer of payment and (4) the drivers signed each document before a notary and only after the document had been read slowly to them in both French and Dioulla and they had each confirmed that they understood what was being signed.

Had Macfarlanes or Trafigura been seeking to make a payment to the dri vel'S in return for providing the witness statements in 2009 (whether true or false) it would have been easy simply to have paid each driver an amount without any record of the transaction. Conversely, it would have been entirely illogical to have recorded any such (illegal) payment in writing.

However, it was precisely because this agreement with the drivers was legal and open and necessary to protect Trafigura from '-'threats of blackmail that the whole process was recorded clearly in writing and was agreed upon by the drivers.

7. Does Macfarlanes still support its previous statement that:

"At no time has anyone from Macfarlanes or Trafigura's legal team, our client or their agents acted improperly or offered any inducements whatsoever to any witnesses or claimants, including the individual referred to in Newsnight's email to us. To do so would have been obviously wrong and unethical, not to mention unlawful"

Macfarlanes still stands by this statement as, we know, does Trafigura.

The witness statements provided by the drivers in 2009 were all intended to reflect the true and honest recollections of each driver relating to the operations following the unloading of the Probo Koala.

Considerable care and time was taken between April 2008 and February 2009 in ensuring that each of the witness statements were correct and could be relied upon. Steps were also taken to ensure that each driver fully understood and agreed with the contents of each witness statement, which were read slowly in French and Dioulla, where appropriate, to allow all and any changes to be made by the drivers. The drivers were each told that they had to be 100% happy with the contents of the final witness statement before signing the witness statement.

There are contemporaneous notes and correspondence recording this fact.

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No driver was paid by Macfarlanes or Trafigura to give the witness statements - other than expenses - and the drivers collectively were never promised that they would collectively or individually be paid 150 million FCFA (229,674 Euros) following the proceedings by either Macfarlanes or Trafigura.

The witness statements were not focussed on either the composition of the slops or the health of the dri vers; their main - if not sole - focus was on the events surrounding the unloading of the Probo Koala and the dumping of the slops - what was dumped, where it was dumped, when it was dumped, why it was dumped and in what quantities. The composition of the slops and the effects of the slops on health were matters for the expert chemists and medical experts - who did not rely upon the drivers' witness statements in any way.

The witness statements contained, at most, only a few lines regarding the colour, texture and flammability of the slops and whether the drivers had been affected by their contact with the slops during the operation. The composition of the slops and the health of the drivers were not the focus in any way of the witness statements. It would, therefore, have been completely pointless,

illogical and a breach of the Court Rules (as well as illegal) to have paid the drivers to make statements (whether true offalse) about the composition of the slops or the effect of the slops on their health in the witness statements, given the lack of any value in such statements for the Court proceedings. There would simply have been no benefit at all to Macfarlanes or Trafigura in taking such a step, but there would have been exceptional dangers in taking such a step.

One has to bear in mind that, despite the allegations apparently now being made by _ and others (which clearly appears motivated by the fact that the Claimants have received some of the settlement moneys), the witness statements signed in 2009 were entirely consistent with the statement given independently bye and other drivers to "Le Patriote" on 14 September 2006 (some 18 months before .met Macfarlanes) on the operations in August 2006 and the question:

• It's been said that a tanker driver died from poisoning. Have you had your health checked? n

To which. replied:

• No we deny this story because we all know each other. And I can assure you that everyone, drivers and co-driversfeel well"

One also has to bear in mind the fact that the witness statements signed in 2009 are also entirely consistent with,- unsolicited letters and emails to Macfarlanes and the intermediary in September and October 2009 in which he reiterated that the witness statements were to provide the truth about the events:

On 23 September 2009:

"First I'm sorry to hear that Trafigura is giving money to liars. I thought Trafigura coming would help us make the truth prevail once and for all. I didn't like seeing that this project came to nothing, but I understand. We're living proof these wastes can't kill.i.I have to tell you that this agreement [the settlement agreement in the Abidjan Personal Injury Group Litigation] has made me sick to the stomach because now these men will think that we're guilty, it was very important for Ivorians to know it was a disgusting charade by the patients and doctors."

On 2 October:

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'}\ result which for us lorry drivers means hope, and is also a victory over the great lie by our Ivorian brothers ....

My sincere regards to all the Trafigura managers, who brought all theirforces to bear to reveal this truth, a truth which at our level has been hard to find.

Personally [ was delighted to work with you, on this case, which as far as [ am concerned was to reveal the truth for all to see. God has finally let most people know what really happened that Saturday and Sunday in Abidjan. Everybody will know the truth in the days to come. "

And on 20 October:

"I've never been afraid to follow this case because it's the truth"

Similarly, we would suggest that it is striking that none of this correspondence from'" demanded payment to either himself or the other drivers from Macfarlanes or Trafigura. Would it not have been more logical for such demands to have been made at that stage if there had been the alleged offers of payment?

It would never have benefited Macfarlanes or Trafigura to procure false evidence as to the nature of the slops or the drivers' health for the purposes of the proceedings. Neither Macfarlanes nor Trafigura ever sought to procure such false evidence. At all times, the evidence was given freely, truthfully and honestly by the drivers and they were never told what they should say or how they had to recollect matters.

In addition, consistent with the position that. and the other drivers gave their evidence freely and honestly - in order to demonstrate their innocence in the affair - it must be borne in mind that, following the decision not to adduce the drivers' witness statements,"continued to provide to Macfarlanes a significant amount of information about individuals - both friends and family - who had joined victims associations in Abidjan but whom he knew had never been exposed to the slops or had ever been affected by them in any way.

In addition, to provide a specific example of _continued assistance, he also introduced Macfarlanes to individuals who knew and worked closely with one of the Lead Claimants in the Abidjan Personal Injury Group Litigation proceedings. These individuals were able to state how and why that particular Lead Claimant's witness statement was false and exaggerated. They were able to demonstrate that the Lead Claimant had not been affected - as alleged or at all - by any exposure to the slops and that he had, in fact, been ill for some months previously with an unconnected illness. This information was then used to collate cross-examination questions for that Lead Claimant to be used by Leading Counsel when the Lead Claimant gave evidence in Court.

Again, we would suggest that such information would not have been produced or introductions made by_if he had been required to provide false evidence regarding his health and that of the other drivers in his witness statement. On the contrary, such information was entirely consistent with both" evidence and that of the other dri vers regarding the effects of the slops.

The case eventually settled on the basis of detailed expert investigations. It did not rely on the drivers' witness statements - which were never submitted to either parties' experts. Trafigura deliberately chose not to adduce the drivers' witness statements, as to do so risked exposing the drivers to personal harm.

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At no stage was the drivers' proposed witness evidence ever intended to be detailed evidence as to the composition of the slops or the drivers' state of health; the witness statements were designed to provide details of - what was dumped, where it was dumped, when it was dumped, why it was dumped and in what quantities. It is simply illogical and it has no basis in fact, to suggest that the drivers were paid to provide false evidence regarding these issues.

The contemporaneous evidence - from the article in "Le Patriote" in September 2006 through to .. correspondence in September/October 2009 - is all entirely consistent with the fact that the witness statements were truthful and given freely - and they were not procured by fraud or any illegal means.

One has to question (I) why. would have given such an interview to "Le Patriote" in September 2006 confirming no ill-health effects or (2) why he stated that he considered the Claimants to be "liars" and "We're living proof these wastes can't kill .. .I have to tell you that this agreement has made me sick to the stomach because now these men will think that we're guilty, it was very important for Ivorians to know it was a disgusting charade by the patients and doctors" in September 2009 or (3) why he stated that he was glad that "God has finally let most people know what really happened that Saturday and Sunday in Abidjan. Everybody will know the truth in the days to come" in October 2009.

All such comments were wholly unrelated to the witness statements and all were unsolicited by Macfarlanes or Trafigura, but all such comments were wholly consistent with the witness statements.

The allegations now being made are serious, untruthful, malicious, libellous and have no basis in fact. You must be extremely careful about repeating such false and malicious allegations which go to the very heart of Macfarlanes' reputation as a law firm.

In 18 years of practice as a solicitor, professional integrity and conduct has never

been questioned in any way prior to this case. Neither he nor any of his Macfarlanes colleagues have ever sought at any time to do anything which would call their professional integrity in to question or to call into question the integrity of Macfarlanes as a law firm. Neither Mr_ nor Macfarlanes were ever asked at any stage by Trafigura or any other party to act in any way which

would call that integrity in to question. In addition, neither Mr nor Macfarlanes nor

Trafigura at any stage ever acted in relation to the drivers and their evidence to call such integrity in to question.

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The current false and malicious allegations that are being made completely misunderstand the nature and proposed use of the witness statements. The issues of (l) the composition of the slops and (2) the drivers' health were not important in the witness statements. We had independent chemistry and medical experts to determine such issues, There would never have been any benefit for Macfarlanes or Trafigura in seeking to adduce false evidence on these two issues in either the drivers' witness statements or by any other means. The allegations both lack substance and fly in the face of any logic.

If such false allegations are repeated, steps will be immediately taken to protect the reputation of Macfarlanes.

The above description of events is to provide to you with a brief summary of how and why the witness statements were obtained and to demonstrate that the drivers' positions have been entirely consistent since September 2006 through to October 2009.

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The recent events in Abidjan surrounding the distribution of the settlement moneys are clearly indicative of the lengths some people will go to in order to obtain money by any means and perhaps at any cost.

_has lied for self-gain as was clearly feared in Apri12010 - albeit he has overlooked his evidence provided (we assume freely) to "Le Patriote" in September 2006 and his contemporaneous correspondence with Macfarlanes in September/October 2009 which clearly indicates that he had been motivated solely by "telling the truth" in preparing the witness statements.

Macfarlanes and Trafigura have both always been extremely careful to maintain the confidentiality and security of individuals who have provided information to Trafigura, given the potential repercussions on such individuals in Abidjan. Employees from Macfarlanes have been threatened whilst in Abidjan and one individual who had been assisting us has been stabbed when his involvement became known in his neighbourhood. As such, we would urge similar caution on you before placing the lives and safety of individuals at risk by repeating such allegations.

We understand that_ and other drivers and individuals recently travelled to Dakar to meet Dutch journalists an~t he deliberately provided them with false information in order to secure a trip to the Netherlands.

It is surprising that it was considered necessary to meet with. and others in Dakar. However, we assume that (1) you have asked similar questions to those above of Greenpeace and (2) that you have thoroughly authenticated your sources and the reliability of their accounts.

We require that you provide to us by return the answers to all of those questions from all parties that you have asked.

Macfarlanes LLP

17 May 2010

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