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?
Independent Dating
and  

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

iJobs Job Widget
iJobs People

Guru Careers: Graduate Resourcer / Recruitment Account Executive

£18k + Bonus: Guru Careers: We are seeking a bright, enthusiastic and internet...

Reach Volunteering: Chair and trustees sought for YMCA Bolton

VOLUNTARY ONLY - EXPENSES REIMBURSED: Reach Volunteering: Bolton YMCA is now a...

Tradewind Recruitment: Geography Teacher

£150 - £180 per day: Tradewind Recruitment: Geography Teacher Geography teach...

Tradewind Recruitment: Geography Teacher

£150 - £180 per day: Tradewind Recruitment: Geography Teacher Geography teach...

Day In a Page

Sepp Blatter resignation: The beginning of Fifa's long road to reform?

Does Blatter's departure mean Fifa will automatically clean up its act?

Don't bet on it, says Tom Peck
Charles Kennedy: The baby of the House who grew into a Lib Dem giant

The baby of the House who grew into a Lib Dem giant

Charles Kennedy was consistently a man of the centre-left, dedicated to social justice, but was also a champion of liberty and an opponent of the nanny-state, says Baroness Williams
Syria civil war: The harrowing testament of a five-year-old victim of this endless conflict

The harrowing testament of a five-year-old victim of Syria's endless civil war

Sahar Qanbar lost her mother and brother as civilians and government soldiers fought side by side after being surrounded by brutal Islamist fighters. Robert Fisk visited her
The future of songwriting: How streaming is changing everything we know about making music

The future of songwriting

How streaming is changing everything we know about making music
William Shemin and Henry Johnson: Jewish and black soldiers receive World War I Medal of Honor amid claims of discrimination

Recognition at long last

Jewish and black soldiers who fought in WWI finally receive medals after claims of discrimination
Beating obesity: The new pacemaker which helps over-eaters

Beating obesity

The new pacemaker which helps over-eaters
9 best women's festival waterproofs

Ready for rain: 9 best women's festival waterproofs

These are the macs to keep your denim dry and your hair frizz-free(ish)
Cycling World Hour Record: Nervous Sir Bradley Wiggins ready for pain as he prepares to go distance

Wiggins worried

Nervous Sir Bradley ready for pain as he prepares to attempt cycling's World Hour Record
Liverpool close in on Milner signing

Liverpool close in on Milner signing

Reds baulk at Christian Benteke £32.5m release clause
On your feet! Spending at least two hours a day standing reduces the risk of heart attacks, cancer and diabetes, according to new research

On your feet!

Spending half the day standing 'reduces risk of heart attacks and cancer'
With scores of surgeries closing, what hope is there for the David Cameron's promise of 5,000 more GPs and a 24/7 NHS?

The big NHS question

Why are there so few new GPs when so many want to study medicine?
Big knickers are back: Thongs ain't what they used to be

Thongs ain't what they used to be

Big knickers are back
Thurston Moore interview

Thurston Moore interview

On living in London, Sonic Youth and musical memoirs
In full bloom

In full bloom

Floral print womenswear
From leading man to Elephant Man, Bradley Cooper is terrific

From leading man to Elephant Man

Bradley Cooper is terrific