Legal aid irrelevant in fixing place of trial

LAW REPORT 29 September 1995

Connelly v RTZ Corporation plc and another; Court of Appeal (Lord Justice Neill, Lord Justice Waite and Lord Justice Swinton-Thomas) 18 August 1995

The availability of legal aid was irrelevant to the question whether a case could more justly and conveniently be tried in one jurisdiction or another.

The Court of Appeal dismissed an appeal by the plaintiff, Edward Connolly, against the order of Sir John Wood, sitting as a deputy High Court judge on 28 February, staying his action against the defendants, the RTZ Corporation plc and RTZ Overseas Services Ltd, on the ground that it should be tried in Namibia.

In March 1986 the plaintiff, a British subject then aged 36, was diagnosed as suffering from throat cancer and shortly thereafter underwent a laryngectomy. He was a former employee in Namibia of a Namibian-registered uranium mining company owned by the English-registered defendants. He claimed damages for negligence on the ground that he had contracted the cancer as a result of their failure to provide a reasonably safe system of work affording protection from the effects of ore dust.

Robin Stewart QC and James Cameron (Leigh Day & Co) for the plaintiff; Brian Doctor (Davies Arnold Cooper) for the defendants.

Lord Justice Waite said the plaintiff did not dispute that Namibia was where the injury was sustained, that the witnesses of fact on whom the defendants would rely principally lived in Namibia or South Africa, that a site inspection of the mine would be necessary and that he could get a fair trial in Namibia. He accepted that Namibia was prima facie the jurisdiction with which, in the language of the test approved in Spiliada Maritime Corp v Consulex Ltd, The Spiliada [1987] 1 AC 460 at 476 to 478, the claim had the "most real and substantial connection".

But the plaintiff was wholly without means and it was virtually certain that in Namibia he would not receive legal aid to pay for professional representation and the attendance of the necessary expert and factual witnesses. It was common ground that it would be impossible for him to sustain his claim without legal aid in any jurisdiction.

In England, however, legal aid would be available. For this reason, applying the Spiliada test, he argued that Namibia self-evidently could not be "the forum in which the case could be tried more suitably for the interests of all the parties and for the ends of justice".

The defendants argued that the availability of legal aid was a factor that could be accepted as relevant but not treated as decisive. But, in his Lordship's judgment, legal aid was either wholly in as a relevant factor or wholly out.

Faced with a case like the present, it was tempting on purely humanitarian grounds to say that the court was bound, by reason alone of the plaintiff's eligibility for legal aid, to refuse a stay. But when the question was answered according to law, the response must be that it could not, for the following reasons.

1) Considerations of international comity were important in this area of law, the objective being to achieve among major common law jurisdictions a broad consensus, the essence of which was a shared resolve to try actions in the forum with which they had the most real and substantial connection.

2) Issues of forum non conveniens had to be resolved at an early stage, in many cases as a matter of urgency. It would not be helpful for the court to become involved at that stage in comparisons between the various forms of public assistance for litigation available in different countries.

3) The exclusion extended only to considerations of legal aid. Private resources remained relevant. So if, for example, exchange control prevented a plaintiff's resources in one country being used in another, that could properly be taken into account.

4) The exclusion was consistent with section 31(1)(b) of the Legal Aid Act 1988, under which the right to legal aid "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 judge was therefore right to grant a stay of the English proceedings and to treat the non-availability of legal aid in Namibia as irrelevant to his decision.

Paul Magrath, Barrister

Start your day with The Independent, sign up for daily news emails
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
SPONSORED FEATURES
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Ashdown Group: Human Resources Manager

£28000 - £35000 per annum + Benefits: Ashdown Group: A successful organisation...

Recruitment Genius: Internal Recruiter - Manufacturing

£20000 - £30000 per annum: Recruitment Genius: An Internal Recruiter (manufact...

Ashdown Group: HR Manager (CIPD) - Barking / East Ham - £50-55K

£50000 - £55000 per annum + 25 days holidays & benefits: Ashdown Group: HR Man...

Recruitment Genius: Operations / Project Manager

£40000 - £48000 per annum: Recruitment Genius: This software company specialis...

Day In a Page

Refugee crisis: David Cameron lowered the flag for the dead king of Saudi Arabia - will he do the same honour for little Aylan Kurdi?

Cameron lowered the flag for the dead king of Saudi Arabia...

But will he do the same honour for little Aylan Kurdi, asks Robert Fisk
Our leaders lack courage in this refugee crisis. We are shamed by our European neighbours

Our leaders lack courage in this refugee crisis. We are shamed by our European neighbours

Humanity must be at the heart of politics, says Jeremy Corbyn
Joe Biden's 'tease tour': Could the US Vice-President be testing the water for a presidential run?

Joe Biden's 'tease tour'

Could the US Vice-President be testing the water for a presidential run?
Britain's 24-hour culture: With the 'leisured society' a distant dream we're working longer and less regular hours than ever

Britain's 24-hour culture

With the 'leisured society' a distant dream we're working longer and less regular hours than ever
Diplomacy board game: Treachery is the way to win - which makes it just like the real thing

The addictive nature of Diplomacy

Bullying, betrayal, aggression – it may be just a board game, but the family that plays Diplomacy may never look at each other in the same way again
Lady Chatterley's Lover: Racy underwear for fans of DH Lawrence's equally racy tome

Fashion: Ooh, Lady Chatterley!

Take inspiration from DH Lawrence's racy tome with equally racy underwear
8 best children's clocks

Tick-tock: 8 best children's clocks

Whether you’re teaching them to tell the time or putting the finishing touches to a nursery, there’s a ticker for that
Charlie Austin: Queens Park Rangers striker says ‘If the move is not right, I’m not going’

Charlie Austin: ‘If the move is not right, I’m not going’

After hitting 18 goals in the Premier League last season, the QPR striker was the great non-deal of transfer deadline day. But he says he'd preferred another shot at promotion
Isis profits from destruction of antiquities by selling relics to dealers - and then blowing up the buildings they come from to conceal the evidence of looting

How Isis profits from destruction of antiquities

Robert Fisk on the terrorist group's manipulation of the market to increase the price of artefacts
Labour leadership: Andy Burnham urges Jeremy Corbyn voters to think again in last-minute plea

'If we lose touch we’ll end up with two decades of the Tories'

In an exclusive interview, Andy Burnham urges Jeremy Corbyn voters to think again in last-minute plea
Tunisia fears its Arab Spring could be reversed as the new regime becomes as intolerant of dissent as its predecessor

The Arab Spring reversed

Tunisian protesters fear that a new law will whitewash corrupt businessmen and officials, but they are finding that the new regime is becoming as intolerant of dissent as its predecessor
King Arthur: Legendary figure was real and lived most of his life in Strathclyde, academic claims

Academic claims King Arthur was real - and reveals where he lived

Dr Andrew Breeze says the legendary figure did exist – but was a general, not a king
Who is Oliver Bonas and how has he captured middle-class hearts?

Who is Oliver Bonas?

It's the first high-street store to pay its staff the living wage, and it saw out the recession in style
Earth has 'lost more than half its trees' since humans first started cutting them down

Axe-wielding Man fells half the world’s trees – leaving us just 422 each

However, the number of trees may be eight times higher than previously thought
60 years of Scalextric: Model cars are now stuffed with as much tech as real ones

60 years of Scalextric

Model cars are now stuffed with as much tech as real ones