Connelly v R.T.Z. Corporation Plc and Others

The House of Lords applied the principle in Spiliada Maritime Corporation v Cansulex Ltd that a stay for forum non conveniens will only be granted if there is another available forum which is clearly or distinctly more appropriate for the interests of all parties and the ends of justice. The court held that the statutory provision, section 31(1)(b) of the Legal Aid Act 1988, does not have the effect of excluding the availability (or non-availability) of legal aid from consideration on an application for a stay on forum non conveniens grounds. Where a case is so complex that substantial justice cannot realistically be obtained in the appropriate foreign forum because the plaintiff cannot obtain necessary legal or expert representation there, the English court may refuse a stay. Applying those principles, the House of Lords allowed the plaintiff's appeal against a stay (legal aid issue) and dismissed the defendants' appeal (conditional fee issue) because the litigation could not effectively be pursued in Namibia without substantial financial assistance.

This case concerned a personal injury / tort claim by the appellant, Edward Connelly, who alleged that exposure to silica, uranium and radioactive decay products while employed at a uranium mine in Namibia caused his laryngeal cancer. The defendants were English companies in the R.T.Z. group. The appellant sought to proceed with the action in England; the defendants applied for a stay in favour of Namibia on the ground of forum non conveniens.

The proceedings and appeals proceeded as follows:

• The trial judge (Sir John Wood) granted a stay, treating section 31(1)(b) of the Legal Aid Act 1988 as requiring the court to disregard the appellant's receipt of legal aid for the purposes of the stay application.
• The Court of Appeal (early decision) refused leave to appeal from that order; subsequently on different proceedings the Court of Appeal (2 May 1996) allowed the appellant's appeal after finding that the appellant could proceed in England without legal aid by use of a conditional fee agreement and that justice required refusal of the stay.
• The matters reached the House of Lords by granted leave and included two related issues: (i) whether section 31(1)(b) forbids consideration of legal aid availability on forum non conveniens applications; and (ii) whether a conditional fee agreement (or availability of legal aid) justified refusal of a stay.

The relief sought was the lifting of the stay so that the action might proceed in England. The principal issues identified and considered were:

• whether section 31(1)(b) of the Legal Aid Act 1988 prevents the court taking into account the availability of legal aid when deciding a forum non conveniens stay;
• whether the existence of a conditional fee agreement or legal aid in England can, in exceptional cases, justify refusal of a stay in favour of a forum which is otherwise clearly more appropriate;
• how to apply the two-stage Spiliada test: (A) whether another forum is clearly more appropriate; and (B) if so, whether justice nevertheless requires that the stay be refused.

The House of Lords held that section 31(1)(b) did not have the effect of excluding consideration of legal aid in the forum non conveniens context. The court reiterated that the Spiliada framework governs: once a defendant establishes that another forum (Namibia) is clearly more appropriate, the plaintiff may nevertheless persuade the court not to grant a stay by showing that substantial justice cannot be obtained in that forum. The Lords concluded that in the particular facts the case was so complex and dependent on expert and professional representation that it could not be tried effectively in Namibia, whereas it could be tried in England by reason of available legal assistance (conditional fee agreements and the prospect of legal aid). The court therefore refused the stay and allowed the appellant to proceed in England.

This was an appellate decision. The House of Lords held that section 31(1)(b) of the Legal Aid Act 1988 does not prevent a court deciding a forum non conveniens application from taking into account the availability of legal aid; applying the Spiliada test the Lords concluded that, because substantial justice could not be done in Namibia without financial assistance and the appellant could obtain assistance in England (conditional fee agreement and/or legal aid), the stay in favour of Namibia should be refused. Accordingly the appellant's appeal (legal aid point) was allowed and the defendants' appeal (conditional fee point) was dismissed.

At first instance Sir John Wood (High Court) granted a stay on forum non conveniens grounds (28 February 1995). The Court of Appeal initially dismissed the appellant's challenge (18 August 1995). After interlocutory steps and further applications the Court of Appeal (Sir Thomas Bingham M.R. et al.) allowed the appellant's appeal (2 May 1996). Leave to appeal to the House of Lords was granted and the House of Lords gave judgment on 24 July 1997 ([1997] UKHL 30).