Connelly v RTZ Corpn Plc (No 3)

On an application to stay proceedings for forum non conveniens, the defendant must first establish an available foreign forum which is clearly or distinctly more appropriate. The plaintiff may then show that justice requires the English proceedings to continue. A plaintiff must ordinarily accept the foreign forum’s procedures and disadvantages. The absence of legal aid or other financial assistance there does not alone justify refusing a stay. Exceptionally, a stay should be refused where the nature and complexity of the litigation make professional and expert assistance indispensable, that assistance is unavailable abroad, and substantial justice therefore cannot be done there. Section 31(1)(b) of the Legal Aid Act 1988 does not exclude the availability of English legal aid from this assessment.

In Connelly v RTZ Corpn Plc (No 3) [1998] AC 854, the plaintiff alleged that exposure while working at a Namibian uranium mine had caused his cancer. He sued two English companies connected with the mine’s owner, alleging that they had devised, advised upon or supervised health and safety policy at the mine.

Namibia was accepted to be the jurisdiction having the closest connection with the claim. Sir John Wood stayed the English proceedings and the Court of Appeal dismissed the plaintiff’s appeal, holding that section 31(1)(b) of the Legal Aid Act 1988 prevented consideration of his English legal aid. After a conditional fee agreement was made, a further application to lift the stay was dismissed by Mr David Steel QC. The Court of Appeal subsequently allowed an appeal from that decision because the claim could be tried in England with financial assistance but could not practically be tried in Namibia.

The House considered both appeals together. The central issues were whether section 31(1)(b) excluded consideration of legal aid and whether the lack of financial assistance in Namibia meant that substantial justice could not be done in the otherwise appropriate forum.

1. Disposition. Lord Goff of Chieveley delivered the leading speech. Lord Lloyd of Berwick, Lord Hope of Craighead and Lord Clyde agreed with it. By a majority of four to one, the House allowed the plaintiff’s appeal concerning legal aid and dismissed the defendants’ appeal concerning the conditional fee agreement.

2. Legal aid legislation. Per Lord Goff, section 31(1)(b) of the Legal Aid Act 1988 did not require the availability of English legal aid to be disregarded when deciding whether proceedings should be stayed for forum non conveniens. The provision prevented legal aid from distorting rights, liabilities and ordinary procedural discretions within litigation. It did not curtail the broader inquiry whether another forum could try the case suitably for all parties and the ends of justice. Lord Hoffmann agreed with this construction, so the House was unanimous on that issue.

3. The governing inquiry. Applying Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, the defendant must first establish an available foreign forum which is clearly or distinctly more appropriate, judged principally by connecting factors. If that burden is discharged, the plaintiff must establish at the second stage that justice requires refusal of a stay. The plaintiff accepted that Namibia had the closest connection and was prima facie the appropriate forum.

4. Substantial justice and litigation funding. Per Lord Goff, a plaintiff must generally take the appropriate foreign forum as it is. Lower damages, less extensive discovery, different procedures or the absence of legal aid will not ordinarily justify retaining English proceedings. Financial assistance may nevertheless be relevant in an exceptional case if its absence means that substantial justice cannot be done abroad. This litigation required professional legal representation and expert scientific evidence. Neither could practically be obtained in Namibia, while legal aid or a conditional fee agreement made them available in England. The Namibian forum therefore could not try the claim suitably for the ends of justice, and the stay was refused.

5. Dissent. Lord Hoffmann would have allowed the defendants’ conditional-fee appeal and dismissed the plaintiff’s legal-aid appeal. He considered poverty and litigation complexity insufficient to displace the prima facie appropriate forum. In his view, juridical advantages should depend upon a real and substantial connection and a legitimate expectation of litigating in England. The defendants’ English presence was neutral once Namibia had been shown to be clearly more appropriate.

6. The defendants were ordered to pay the plaintiff’s costs of the legal-aid appeal here and below and his costs of the conditional-fee appeal in the House.

• House of Lords: Allowed the plaintiff’s appeal from the decision concerning legal aid and dismissed the defendants’ appeal from the decision concerning the conditional fee agreement. The stay therefore did not prevent the English action from proceeding.
• Court of Appeal, 2 May 1996: Allowed the plaintiff’s appeal from Mr David Steel QC. It held that, because the undertakings and conditional fee agreement enabled the claim to proceed without legal aid, section 31(1)(b) of the Legal Aid Act 1988 was no obstacle and justice favoured trial in England.
• Court of Appeal, 18 August 1995: Dismissed the plaintiff’s appeal from Sir John Wood. It held that section 31(1)(b) required the non-availability of legal aid in Namibia to be disregarded.
• High Court, 27 October 1995: Mr David Steel QC dismissed the application to lift the stay. He considered it almost inevitable that legal aid would again be sought and therefore found no material change of circumstances.
• High Court, 28 February 1995: Sir John Wood stayed the action because Namibia was the appropriate forum. He treated the plaintiff’s English legal aid as irrelevant under section 31(1)(b).