Connelly v RTZ Corporation Plc and Another

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD GOFF OF CHIEVELEY,LORD LLOYD OF BERWICK,LORD HOFFMANN,LORD HOPE OF CRAIGHEAD,LORD CLYDE
Judgment Date24 Jul 1997
Judgment citation (vLex)[1997] UKHL J0724-2

[1997] UKHL J0724-2

HOUSE OF LORDS

Lord Goff of Chieveley

Lord Lloyd of Berwick

Lord Hoffmann

Lord Hope of Craighead

Lord Clyde

Connelly (A.P.)
(Appellant)
and
R.T.Z. Corporation Plc

and Others

(Respondents)
LORD GOFF OF CHIEVELEY

My Lords,

1

There are before your Lordships two appeals, both arising out of the same proceedings. The plaintiff in the action is Edward Connelly, who is domiciled in Scotland. In 1971, when he was 21 years old, he went to South Africa. For a period of about five and a half years, between 1977 and 1982, he was employed by Rossing Uranium Ltd. ("R.U.L."), which carried on the business of mining uranium at Rossing in Namibia. He returned to Scotland in about 1983. In 1986 it was discovered that he was suffering from cancer of the larynx. He subsequently underwent a laryngectomy, and has since breathed through a tube in his throat. He claims that his cancer was the result of inhaling silica uranium and its radioactive decay products at the mine.

2

R.U.L. is a subsidiary of the first defendant, the R.T.Z. Corporation Plc ("R.T.Z."), which is an English company with its registered office in London. In March 1988 Scottish solicitors acting for the plaintiff wrote to R.T.Z. raising the question of compensation. R.T.Z. replied that the claim should be addressed to R.U.L., and forwarded the letter to R.U.L. in Namibia. R.U.L.'s insurers denied liability. In February 1990 the Legal Assistance Centre of Windhoek in Namibia lodged a claim for compensation on behalf of the plaintiff under the Workmen's Compensation Act 1941 of South Africa and Namibia. However the Workmen's Compensation Commissioner rejected the claim.

3

On 15 December 1993 the plaintiff obtained a legal aid certificate to bring proceedings against R.T.Z. in England, and the writ and statement of claim in the present action were served on R.T.Z. on 19 September 1994. It was alleged that R.T.Z. had devised R.U.L.'s policy on health, safety and the environment, or alternatively had advised R.U.L. as to the contents of the policy. It was further alleged that an employee or employees of R.T.Z., referred to as R.T.Z. supervisors, implemented the policy and supervised health, safety and/or environmental protection at the mine. Following receipt of information from R.T.Z.'s solicitors that certain of these "R.T.Z. supervisors" had been transferred to another subsidiary of R.T.Z., R.T.Z. Overseas Services Ltd. ("R.T.Z. Overseas") which was also an English company registered in London, the plaintiff obtained leave to amend his writ and statement of claim to join R.T.Z. Overseas as second defendants. This was duly done.

4

The course of the proceedings

5

On 28 October 1994 R.T.Z. applied to the High Court in London for a stay of the proceedings on the ground that Namibia was the appropriate forum for the trial of the action. It was later conceded by the plaintiff that Namibia was prima facie the jurisdiction with which the claim had the most real and substantial connection. The application for a stay came before Sir John Wood, sitting as a High Court judge. He gave his judgment on 28 February 1995. He referred in particular to section 31(1) of the Legal Aid Act 1988, which provides that:

"Except as expressly provided by this Act or regulations under it …b) the rights conferred by this Act on a person receiving advice, assistance or representation under it 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."

6

He held that, in deciding whether to exercise his discretion to grant a stay, he was bound by that subsection to disregard the fact that the plaintiff was in receipt of legal aid in this country; and, having regard to the close connection of the claim with Namibia, he decided to stay the action, notwithstanding that there was no financial assistance, in the form of legal aid or otherwise, available to the plaintiff in Namibia to enable him to pursue his claim there. The plaintiff was refused leave to appeal. On 18 August 1995 the Court of Appeal (Neill, Waite and Swinton Thomas L.JJ.) gave the plaintiff leave to appeal, but dismissed his appeal. The principal judgment was delivered by Waite L.J. He concluded that Sir John Wood was right to treat the non-availability of legal aid in Namibia as irrelevant to his decision, the exclusion of consideration of legal aid being consistent with section 31(1)(b) of the Legal Aid Act 1988. Neill and Swinton Thomas L.JJ. considered that the subsection placed an insuperable obstacle in the way of the plaintiff.

7

On 2 October 1995 the plaintiff's solicitors informed the defendants that the plaintiff would not proceed with a petition for leave to appeal to this House; but that the solicitors had entered into a conditional fee agreement with the plaintiff, and that therefore a summons would be issued seeking the lifting of the stay. Conditional fee agreements between legal advisers and clients had been authorised by section 58 of the Courts and Legal Services Act 1990, and by the Conditional Fee Agreements Order 1995 (S. 1. 1995 No. 1674) which came into force on 5 July 1995. The plaintiff's legal aid certificate was discharged; but his solicitors later made it plain that they could not rule out the possibility that at some point in the future the plaintiff might again apply for legal aid. The defendants expressed the opinion that it was only a matter of time before the plaintiff was back on legal aid again, in view of the size, scope and cost of the proposed trial. Indeed it became apparent that at that time the conditional fee agreement was limited to the application to discharge the stay and any appeal from it, and certainly did not extend so far as to include the trial of the action.

8

The plaintiff's application to lift the stay came before Mr. David Steel Q.C., sitting as a Deputy High Court Judge, on 27 October 1995. Before him, the plaintiff's solicitors stated that they would enter into further conditional fee agreements if that was "the only way of ensuring that the plaintiff gets justice." Mr. Steel accepted that this statement was made in good faith, but he concluded that it was, to put it at its lowest, astonishingly ambitious. He took a realistic view of the situation, and considered that it was almost inevitable that an application for legal aid would in due course be made. It followed that in reality the situation had not changed. He therefore dismissed the plaintiff's application, and refused leave to appeal.

9

The plaintiff applied ex parte to the Court of Appeal for leave to appeal from Mr. Steel's order. On 29 January 1996, the plaintiff having offered undertakings that he would not apply for legal aid and that his solicitors would continue the conditional fee agreement on appropriate terms until the conclusion of the trial or earlier order, the Court of Appeal (Millett and Ward L.JJ.) granted him leave.

10

On 2 May 1996 the Court of Appeal (Sir Thomas Bingham M.R., Evans and Ward L.JJ.) allowed the plaintiff's appeal. The leading judgment was delivered by the Master of the Rolls. He rejected the realistic approach adopted by Mr. Steel, especially as the limited conditional fee agreement was supported by the undertakings given by the plaintiff's solicitors on the application for leave to appeal. The plaintiff was able to proceed without recourse to legal aid, and so section 31(1)(b) of the Act of 1988 no longer stood in his way. Accordingly the Court considered the matter on the basis of the principles stated by your Lordships' House in Spiliada Maritime Corporation v. Cansulex Ltd. [1987] A.C. 460. On 2 May 1996 they decided to allow the appeal. The decisive consideration is to be found in the following passage from the judgment of Sir Thomas Bingham M.R.

"But faced with a stark choice between one jurisdiction, albeit not the most appropriate in which there could in fact be a trial, and another jurisdiction, the most appropriate in which there never could, in my judgment, the interests of justice would tend to weigh, and weigh strongly in favour of that forum in which the plaintiff could assert his rights".

11

The defendants petitioned this House for leave to appeal from this decision, and the plaintiff then petitioned for leave to appeal out of time from the decision of the Court of Appeal of 18 August 1995. Your Lordships' House gave leave in both cases.

12

There followed a minor complication. The plaintiff lodged a notice of appeal, but did not post the required security. Accordingly on 3 March 1996 his appeal stood dismissed pursuant to Practice Direction 11.1. The plaintiff then petitioned for his appeal to be restored, and his petition was granted.

13

Section 31(1)(b) of the Legal Aid Act 1988

14

I propose to turn at once to consider the relevance of this subsection. It was regarded as decisive, both by Sir John Wood and by the Court of Appeal, in relation to what I will call the first appeal. There is no comparable statutory provision in respect of conditional fee agreements, and so no argument of this kind is available to R.T.Z. in respect of the second appeal. This of itself presents a remarkable contrast between the two appeals.

15

I have already set out the terms of the subsection. The suggestion is that the subsection has the effect that, in the case of an application for a stay of proceedings on the principle of forum non conveniens, the fact that the plaintiff is in receipt of legal aid in this country cannot be taken into account because the subsection provides that the receipt of legal aid "shall not affect … the principles on which the discretion of any court or tribunal is normally exercised." I feel bound to say that I find it surprising that the subsection...

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