#4994 - Connelly V. Rtz Corporation - Conflict of Laws BCL

Connelly v. RTZ Corporation

Facts

The plaintiff in the action is Edward Connelly, who is domiciled in Scotland. In 1971, when he was 21 years old, he went to South Africa. For a period of about five and a half years, between 1977 and 1982, he was employed by Rossing Uranium Ltd. ("R.U.L."), which carried on the business of mining uranium at Rossing in Namibia. In 1986 it was discovered that he was suffering from cancer of the larynx. He subsequently underwent a laryngectomy, and has since breathed through a tube in his throat. He claims that his cancer was the result of inhaling silica uranium and its radioactive decay products at the mine.

R.U.L. is a subsidiary of the first defendant, the R.T.Z. Corporation Plc. ("R.T.Z."), which is an English company with its registered office in London…. On 15 December 1993 the plaintiff obtained a legal aid certificate to bring proceedings against R.T.Z. in England.

On 2 October 1995 the plaintiff's solicitors informed the defendants that the plaintiff would not proceed with a petition for leave to appeal to this House; but that the solicitors had entered into a conditional fee agreement with the plaintiff, and that therefore a summons would be issued seeking the lifting of the stay.

Section 31(1)(b) of the Legal Aid Act provided:

“Except as expressly provided by this Act or regulations under it . . . (b) the rights conferred by this Act on a person receiving advice, assistance or representation under it shall not affect the rights or liabilities of other parties to the proceedings or the principles on which the discretion of any court or tribunal is normally exercised.”

The proceedings arise out of an application made by the defendant company to stay the proceedings in England.

Holding

Lord Goff

Application of the Legal Aid Act Provision

The suggestion is that the subsection has the effect that, in the case of an application for a stay of proceedings on the principle of forum non conveniens, the fact that the plaintiff is in receipt of legal aid in this country cannot be taken into account because the subsection provides that the receipt of legal aid "shall not affect … the principles on which the discretion of any court or tribunal is normally exercised." I feel bound to say that I find it surprising that the subsection should have this effect. I can fully understand that, in matters arising in the course of legal proceedings in this country, the fact that one party is in receipt of legal aid should not be allowed to distort the legal process, whether as regards the rights or liabilities of other parties, or as regards the principles on which judicial discretions are exercised.

It follows that, in my opinion, for the purposes of considering the question in the present case, section 31(1)(b) can be disregarded as irrelevant.

Forum Non Conveniens

It is accepted on both sides that these are to be found in the decision of your Lordships' House in Spiliada Maritime Corporation v. Cansulex Ltd. [1987] A.C. 460.

It was further stated that the burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay. For that purpose, he has to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum in which jurisdiction has been founded by the plaintiff as of right. In considering that question, the court will look first to see what factors there are which point in the direction of another forum, i.e. connecting factors which indicate that it is with the other forum that the action has its most real and substantial connection. This is the first stage. However, even if the court concludes at that stage that the other forum is clearly more appropriate for the trial of the action, the court may nevertheless decline to grant a stay if persuaded by the plaintiff, on whom the burden of proof then lies, that justice requires that a stay should not be granted.

Before your Lordships it was accepted by the plaintiff that the defendants had discharged the burden on them at the first stage of establishing that Namibia was the jurisdiction with which the action had the closest connection, with the effect that prima facie a stay should be granted. The crucial question arose, therefore, whether a stay should nevertheless be refused because justice so required, on the grounds that the plaintiff could not proceed with the trial without financial assistance and that, whereas no such assistance was available in Namibia, it was available in England, in the form either of legal aid or, failing that, a conditional fee agreement.

Impact of Unavailability of Legal Aid in Namibia

From the discussion which followed, a general principle may be derived, which is that, if a clearly more appropriate forum overseas has been identified, generally speaking the plaintiff will have to take that forum as he finds it, even if it is in certain respects less advantageous to him than the English forum. He may, for example, have to accept lower damages, or do without the more generous English system of discovery…. Only if the plaintiff can establish that substantial justice cannot be done in the appropriate forum, will the court refuse to grant a stay: see the Spiliada case, at p. 482.

I wish to interpolate at this stage that there is no question of the plaintiff in this case having founded jurisdiction against the defendants on what may be described as an extravagant basis. In a case where the plaintiff has done so, for example by serving proceedings on an individual defendant while on a brief visit to this country, the court may not be prepared to assist him by refusing a stay to enable him to keep the benefit of an advantage available to him in this country.

I therefore start from the position that, at least as a general rule, the court will not refuse to grant a stay simply because the plaintiff has shown that no financial assistance, for example in the form of legal aid, will be available to him in the appropriate forum, whereas such financial assistance will be available to him in England… In this connection it should not be forgotten that financial assistance for litigation is not necessarily regarded as essential, even in sophisticated legal systems. It was not widely available in this country until 1949; and even since that date it has been only available for persons with limited means.

Even so, the availability of financial assistance in this country, coupled with its non-availability in the appropriate forum, may exceptionally be a relevant factor in this context. The question, however, remains whether the plaintiff can establish that substantial justice will not in the particular circumstances of the case be done if the plaintiff has to proceed in the appropriate forum where no financial assistance is available.

This is in effect what was urged upon your Lordships in the present case. It is clear that the nature and complexity of the case is such that it cannot be tried at all without the benefit of financial assistance. There are two reasons for this. The first is that, as Sir Thomas Bingham M.R. recognised, there is no practical possibility of the issues which arise in the case being tried without the plaintiff having the benefit of professional legal assistance; and the second is that his case cannot be developed before a court without evidence from expert scientific witnesses.

If the case is fought in this country the plaintiff will either obtain assistance in the form of legal aid or, failing that, receive the benefit of a conditional fee agreement with his solicitor. With regard to the latter I am, like the Court of Appeal, not prepared to doubt the sincerity of the...