Judgments - Connelly (A.P.) v. R.T.Z Corporation Plc and Others  continued

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    Faced with these diametrically opposed points of view your Lordships should, I suggest, approach the appeals as follows. First, the question of a stay of proceedings must be considered on the basis of the applicable principles. These principles are concerned with the identification of the appropriate forum for the trial. They are not concerned with the strength of the plaintiff's claim, as to which your Lordships are not at present in any position to form a judgment. If it is decided that a stay should not be granted, then there are mechanisms available within the English trial process, such as an order for a preliminary issue, which can be invoked with a view to shortening the trial and saving costs. Second, if I am right in my view that section 31(1)(b) of the Legal Aid Act 1988 has no application in these appeals, it will follow that, given a favourable decision by the Legal Aid authorities, the plaintiff would in all probability pursue his claim with the support of legal aid rather than on the basis of a conditional fee agreement.

    With this by way of introduction, I turn to consider the applicable principles.

The applicable principles

    It is accepted on both sides that these are to be found in the decision of your Lordships' House in Spiliada Maritime Corporation v. Consulex Ltd. [1987] A.C. 460. I take the liberty of repeating that the underlying principle, drawn from the judgment of Lord Kinnear in Sim v. Robinow (1892) 14 R. 665, 668, was stated at p. 476 to be that:

     "a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice."

It was further stated that the burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay. For that purpose, he has to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum in which jurisdiction has been founded by the plaintiff as of right. In considering that question, the court will look first to see what factors there are which point in the direction of another forum, i.e. connecting factors which indicate that it is with the other forum that the action has its most real and substantial connection. This is the first stage. However, even if the court concludes at that stage that the other forum is clearly more appropriate for the trial of the action, the court may nevertheless decline to grant a stay if persuaded by the plaintiff, on whom the burden of proof then lies, that justice requires that a stay should not be granted. This is the second stage.

    Before your Lordships it was accepted by the plaintiff that the defendants had discharged the burden on them at the first stage of establishing that Namibia was the jurisdiction with which the action had the closest connection, with the effect that prima facie a stay should be granted. The crucial question arose, therefore, whether a stay should nevertheless be refused because justice so required, on the grounds that the plaintiff could not proceed with the trial without financial assistance and that, whereas no such assistance was available in Namibia, it was available in England, in the form either of legal aid or, failing that, a conditional fee agreement. The question therefore arises whether these circumstances are capable of justifying a refusal of a stay in favour of the appropriate forum and, if so, whether the Court of Appeal was justified in holding that for that reason a stay should be refused on the facts of the present case.

    In the Spiliada [1987] A.C. 460, 478 it was stated that, at the second stage of the inquiry, the court will consider all the circumstances. Certainly the court is not restricted at this stage to considering factors which may connect the litigation with the English jurisdiction. In support of this proposition, reliance can properly be placed on Oppenheimer v. Louis Rosenthal & Co. [1937] 1 All E.R. 23, a case concerned with service out of the jurisdiction in which the Court of Appeal refused to set aside the service of the writ in Germany in circumstances in which the plaintiff, a German national of the Jewish faith, might not have been entitled to the services of an advocate in the German court and would have run a grave personal risk if he travelled to Germany to conduct his case in person. A similar point was considered, but rejected on the facts, by the House of Lords in The Abidin Daver [1984] A.C. 398, a case concerned with lis alibi pendens. Furthermore, some guidance was given in the Spiliada at pp. 482 et seq. as to the impact of specific advantages which the plaintiff might derive from the English jurisdiction, if a stay was not granted, viz., damages on a higher scale; a more complete system of discovery; a power to award interest; a more generous limitation period. From the discussion which followed, a general principle may be derived, which is that, if a clearly more appropriate forum overseas has been identified, generally speaking the plaintiff will have to take that forum as he finds it, even if it is in certain respects less advantageous to him than the English forum. He may, for example, have to accept lower damages, or do without the more generous English system of discovery. The same must apply to the system of court procedure, including the rules of evidence, applicable in the foreign forum. This may display many features which distinguish it from ours, and which English lawyers might think render it less advantageous to the plaintiff. Such a result may in particular be true of those jurisdictions, of which there are many in the world, which are smaller than our own, and are in consequence lacking in financial resources compared with our own. But that is not of itself enough to refuse a stay. Only if the plaintiff can establish that substantial justice cannot be done in the appropriate forum, will the court refuse to grant a stay: see the Spiliada at p. 482.

    I wish to interpolate at this stage that there is no question of the plaintiff in this case having founded jurisdiction against the defendants on what may be described as an extravagant basis. In a case where the plaintiff has done so, for example by serving proceedings on an individual defendant while on a brief visit to this country, the court may not be prepared to assist him by refusing a stay to enable him to keep the benefit of an advantage available to him in this country. Certainly in Scotland there has been a marked tendency to grant a stay, despite the availability of an advantage to the plaintiff in that country, where jurisdiction has been founded on the extravagant basis of arrestment of the defendant's assets within the jurisdiction: see, for example, Lane v. Foulds (1903) 11 S.L.T. 118, and Anderson Tulloch & Co. v. J. C. & J. Field Ltd. 1910 1 S.L.T. 401. Here, however, the plaintiff founded jurisdiction as of right by serving the two defendants in this country, both of them being English companies registered here. No doubt their domicile in this country, coupled with the availability of financial assistance here, has encouraged him to select them as defendants in place of R.U.L. But I cannot see that that of itself exposes the plaintiff to criticism. If he was going to sue these defendants, this was an appropriate jurisdiction in which to serve proceedings on them. It is then for the defendants to persuade the court, as they are seeking to do, that the action should be stayed on the ordinary principles of forum non conveniens.

    I therefore start from the position that, at least as a general rule, the court will not refuse to grant a stay simply because the plaintiff has shown that no financial assistance, for example in the form of legal aid, will be available to him in the appropriate forum, whereas such financial assistance will be available to him in England. Many smaller jurisdictions cannot afford a system of legal aid. Suppose that the plaintiff has been injured in a motor accident in such a country, and succeeds in establishing English jurisdiction on the defendant by service on him in this country where the plaintiff is eligible for legal aid, I cannot think that the absence of legal aid in the appropriate jurisdiction would of itself justify the refusal of a stay on the ground of forum non conveniens. In this connection it should not be forgotten that financial assistance for litigation is not necessarily regarded as essential, even in sophisticated legal systems. It was not widely available in this country until 1949; and even since that date it has been only available for persons with limited means. People above that limit may well lack the means to litigate, which provides one reason for the recent legalisation of conditional fee agreements.

    Even so, the availability of financial assistance in this country, coupled with its non-availability in the appropriate forum, may exceptionally be a relevant factor in this context. The question, however, remains whether the plaintiff can establish that substantial justice will not in the particular circumstances of the case be done if the plaintiff has to proceed in the appropriate forum where no financial assistance is available.

    This is in effect what was urged upon your Lordships in the present case. It is clear that the nature and complexity of the case is such that it cannot be tried at all without the benefit of financial assistance. There are two reasons for this. The first is that, as Sir Thomas Bingham M.R. recognised, there is no practical possibility of the issues which arise in the case being tried without the plaintiff having the benefit of professional legal assistance; and the second is that his case cannot be developed before a court without evidence from expert scientific witnesses. It is not in dispute that in these circumstances the case cannot be tried in Namibia; whereas, on the evidence before the Court of Appeal and before your Lordships, it appears that if the case is fought in this country the plaintiff will either obtain assistance in the form of legal aid or, failing that, receive the benefit of a conditional fee agreement with his solicitor. With regard to the latter I am, like the Court of Appeal, not prepared to doubt the sincerity of the statement made by the plaintiff's solicitor, Mr. Meeran, on oath, that he is prepared to enter into a conditional fee agreement to cover the conduct of the action, up to and including the trial. In these circumstances I am satisfied that this is a case in which, having regard to the nature of the litigation, substantial justice cannot be done in the appropriate forum, but can be done in this jurisdiction where the resources are available.

    If the position had been, for example, that the plaintiff was seeking to take advantage of financial assistance available here to obtain a Rolls Royce presentation of his case, as opposed to a more rudimentary presentation in the appropriate forum, it might well have been necessary to take a different view. But this is not the present case. There is every reason to believe that this case calls for highly professional representation, by both lawyers and scientific experts, for the achievement of substantial justice, and that such representation cannot be achieved in Namibia. In these circumstances, to revert to the underlying principle, the Namibian forum is not one in which the case can be tried more suitably for the interests of all the parties and for the ends of justice.

Conclusion

    For these reasons, I would allow the plaintiff's appeal in the first (legal aid) appeal, and dismiss the defendants' appeal in the second (conditional fee agreement) appeal. The defendants should, in my opinion, pay the plaintiff's costs of the first appeal here and below, and his costs of the second appeal before your Lordships' House.

Postscript

    I wish to record that the argument that section 31(1)(b) of the Legal Aid Act 1988 should be held to be inapplicable in the case of an application for a stay of proceedings on the ground of forum non conveniens was not explored in depth before the Appellate Committee. In ordinary circumstances, therefore, the Committee might invite further submissions on the point before concluding that it should affect the outcome of the appeal. I have, however, come to the conclusion that in the present appeal it is, exceptionally, unnecessary and inappropriate for that course to be taken. First, the argument has no impact on what I have called the second appeal, which is concerned not with legal aid but with a conditional fee agreement. Moreover, the present position is that the plaintiff has the benefit of such an agreement, but is not in receipt of legal aid. It follows that the defendants' application for a stay must in any event fail, regardless of this argument. Second, this interlocutory battle has continued for nearly three years, and it is highly undesirable that it should be prolonged by yet another hearing. For these reasons, and bearing in mind that it is in the public interest that the point should be addressed and decided, I would not invite further submissions on the point.



LORD LLOYD OF BERWICK


My Lords,

    I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Goff of Chieveley. I agree with it and for the reasons which he gives I would also allow the plaintiff's appeal in the first appeal and dismiss the defendants' appeal in the second appeal.



LORD HOFFMANN


My Lords,

    I have had the advantage of reading in draft the speech of my noble and learned friend Lord Goff of Chieveley. I agree with his opinion on the construction of section 31(1)(b) of the Legal Aid Act 1988. I am however in the somewhat individious position of not being in agreement with my noble and learned friend's application of the principles stated in his own classic judgment in Spiliada Maritime Corporation v. Cansulex Ltd [1987] A.C. 460. In my view, the existence of neither Legal Aid nor a conditional fee agreement is sufficient to displace the prima facie conclusion that Namibia is the appropriate forum for the trial of this case. Since none of your Lordships share this view, I shall state it with brevity.

    In principle I understand your Lordships to accept that the availability in England of one form or another of financial assistance to carry on litigation is not a reason for refusing a stay when another country is so much more closely connected with the subject-matter of the litigation as to make it clearly the more appropriate forum. But, it is said, there are circumstances which make this an exceptional case. These consist of a combination of three factors.

    First, the plaintiff's lack of means and the complexity of the litigation make it in practice impossible for him to present his case effectively before the courts of Namibia. This was regarded as the determining factor by the Master of the Rolls:

     "Faced with the 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."

    My Lords, of course I sympathise with the plaintiff, who has contracted a serious disease while employed in another country and considers that he can demonstrate that it was caused by the conditions under which he worked and these are attributable to the culpable neglect of the defendants. But I do not think that the refusal a stay on this ground can be based upon any defensible principle. It means that the action of a rich plaintiff will be stayed while the action of a poor plaintiff in respect of precisely the same transaction will not. It means that the more speculative and difficult the action, the more likely it is to be allowed to proceed in this country with the support of public funds. Such distinctions will do the law no credit. For my part, I prefer the eminently rational principle stated by Sopinka J. in Amchem Products Inc v. Workers Compensation Board (1993) 102 D.L.R. (4th) 96, 110:

     "The weight to be given to juridical advantage is very much a function of the parties' connection to the particular jurisdiction in question. If a party seeks out a jurisdiction simply to gain a juridical advantage rather than by reason of a real and substantial connection of the case to the jurisdiction, that is ordinarily condemned as 'forum shopping'. On the other hand, a party whose case has a real and substantial connection with a forum has a legitimate claim to the advantages that that forum provides. The legitimacy of this claim is based on a reasonable expectation that in the event of litigation arising out of the transaction in question, those advantages will be available."

    In my view, the plaintiff while employed in Namibia had no legitimate expectation that litigation arising out of the circumstances of his employment would take place in England. He had abandoned his Scottish domicile of origin and emigrated to South Africa. He had then moved to Namibia. His position was therefore no different from that of a native Namibian. Apart from the fact that his employer formed part of a multinational group of companies with its headquarters in England, the transaction had no connection with England.

    The second factor relied upon is that the defendants are English companies properly served within the jurisdiction. The English court therefore has personal jurisdiction over them. But, my Lords, that is always the starting point for the exercise of the jurisdiction on the ground of forum non conveniens. It is the reason why the burden is on the defendant to satisfy the court, by reference to the subject-matter of the litigation, that there clearly another more appropriate forum. If, however, the defendant has satisfied the burden, I do not see how the existence of personal jurisdiction can without more be a factor to cast into the balance. I say, "without more," because there may be other reasons why the defendant not only can be sued here but why his presence in the jurisdiction makes it more appropriate to sue him here. But there is no such factor in this case. The defendant is a multinational company, present almost everywhere and certainly present and ready to be sued in Namibia. I would therefore regard the presence of the defendants in the jurisdiction as a neutral factor. If the presence of the defendants, as parent company and local subsidiary of a multinational, can enable them to be sued here, any multinational with its parent company in England will be liable to be sued here in respect of its activities anywhere in the world.

    Third and last, there is the fact that the plaintiff has, since leaving his employment, taken up residence and resumed his domicile of origin in Scotland. In my view, this change which has taken place since the events forming the subject-matter of the litigation cannot affect the question of whether the plaintiff had a legitimate expectation of being able to invoke the English jurisdiction.

    For these reasons, I would have allowed the conditional fee appeal and dismissed the legal aid appeal.



LORD HOPE OF CRAIGHEAD


My Lords,

    I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Goff of Chieveley. I entirely agree with it, and for the same reasons I also would allow the plaintiff's appeal in the first appeal and dismiss the defendants' appeal in the second appeal.



LORD CLYDE


My Lords,

    I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Goff of Chieveley. I agree with it, and for the reasons which he gives, would also allow the plaintiff's appeal in the first appeal and dismiss the defendants' appeal in the second appeal.



 
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Prepared 24 July 1997