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  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