The Central Bank of Trinidad and Tobago v Maritime Life (Caribbean) Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Stephens,Lord Hodge,Lord Sales,Lord Hamblen,Lord Leggatt |
| Judgment Date | 20 October 2022 |
| Neutral Citation | [2022] UKPC 37 |
| Docket Number | Privy Council Appeal No 0077 of 2021 |
| Court | Privy Council |
[2022] UKPC 37
Lord Hodge
Lord Sales
Lord Hamblen
Lord Leggatt
Lord Stephens
Privy Council Appeal No 0077 of 2021
Privy Council
Appellant
Ian L Benjamin SC
Kerwyn Garcia Dionne Springer
(Instructed by Charles Russell Speechlys LLP (London))
Respondent
Edward Fitzgerald KC
Fyard Hosein SC
Joseph Middleton
Sasha Bridgemohansingh
Annette Mamchan
Aadam Hosein
(Instructed by Simons Muirhead & Burton LLP)
Lord Stephens (with whom Lord Hodge, Lord Sales, Lord Hamblen and Lord Leggatt agree):
The respondent, Maritime Life (Caribbean) Limited, brought legal proceedings against the appellant, the Central Bank of Trinidad and Tobago, in relation to the appellant's oversight of the bidding processes for the sales and its subsequent approval of certain Traditional Insurance Portfolio (“TIP”) sales to Sagicor Life Inc. (“Sagicor”). The sales were made by Colonial Life Insurance Company (Trinidad) Limited (“CLICO”) and British American Insurance (Trinidad) Limited (“BAT”). The respondent commenced legal proceedings (Claim No. CV2019-04772) seeking judicial review and raising certain constitutional challenges. No leave was required to commence the constitutional challenge but as required by section 6 of the Judicial Review Act Chapter 7:08 the respondent sought and, on 6 April 2020 obtained from Rampersad J, leave to apply for judicial review. On 17 February 2021 the Court of Appeal, by a majority, dismissed an appeal against that decision (Boodoosingh and Aboud JJA with Rajkumar JA dissenting). The appellant now appeals as of right to the Privy Council, contending that leave to bring judicial review proceedings against the appellant should not have been granted to the respondent.
It is well settled that the threshold for the grant of leave to apply for judicial review is low. The Court is concerned only to examine whether the applicant has an arguable ground for judicial review that has a realistic prospect of success and is not subject to a discretionary bar such as delay or an alternative remedy: see governing principle (4) identified in Sharma v Brown-Antoine [2006] UKPC 57; [2007] 1 WLR 780, para 14. The low threshold would usually not be met “if a court were confident at the leave stage that the legal position was entirely clear and to the effect that the claim could not succeed”: see Attorney General v Ayers-Caesar [2019] UKPC 44 at para 2.
It is equally well settled that the threshold on appeal for overturning a grant of leave to apply for judicial review is high. In Sookhan v The Children's Authority of Trinidad and Tobago [2021] UKPC 29 at para 6 the Board stated that if leave to apply for judicial review has been granted then the grant of leave stands on appeal “unless the appellate court is satisfied that it should plainly not have been granted.” In circumstances where leave to apply for judicial review has been granted, then ordinarily the preferred course is to proceed to a hearing on the merits, unless there is some clean knockout blow. On an appeal a very powerful - even an overwhelming - case presented on behalf of an appellant ordinarily will not suffice unless it amounts to a clean knockout blow.
The threshold is even higher in circumstances where (as here) there was a grant of leave to apply for judicial review at first instance which was then upheld in the Court of Appeal. There are several reasons for this. First, two courts will have already concluded that the case discloses arguable grounds with a realistic prospect of success. In other words, the reliability of the judge's grant of leave will already have been subjected to review by an experienced Court of Appeal. Second, the leave filter should not become an instrument of delay and increased costs by virtue of the interposition of a series of appeals on this preliminary gateway. Third, judicial review proceedings ordinarily not only affect the interests of the parties but also affect public interests. The public interest will generally not be served by the parties engaging in satellite litigation by second appeals against the grant of leave to apply for judicial review. Accordingly, for a second appeal against a grant of leave to apply for judicial review to succeed there must be some exceptional circumstance establishing plainly that leave should not have been granted. Such an exceptional circumstance will usually need to be demonstrated in clear terms in the appellant's written case. If the Board is not persuaded by pre-reading it, then the Board is likely to require such exceptional circumstances to be established at the outset of the hearing in concise oral submissions. Absent exceptional circumstances being established at the outset, it should be anticipated that the appeal will be dismissed.
Given the low threshold for the grant of leave to apply for judicial review and the high threshold on a first appeal, let alone on a second appeal, Mr Benjamin SC, in his well-structured and able submissions on behalf of the appellant, correctly accepted that there was a considerable hurdle to be overcome for the appeal to have any prospect of succeeding.
The respondent also asserts that its constitutional right to equal treatment under sections 4(b) and 4(d) of the Constitution of Trinidad and Tobago was breached, in that it did not receive the same standard of treatment from the appellant as the appellant accorded to Sagicor. The respondent did not have to establish that there were arguable grounds with a realistic prospect of success to commence proceedings based on its constitutional challenge, as no leave is required for constitutional challenges. The appellant, whilst accepting that the principle of equal treatment enshrined in section 4(d) of the Constitution applied to its oversight of the bidding process and its subsequent approval of the sales to Sagicor, sought to submit before the Board that the respondent's constitutional challenge should be struck out on the basis that there was no evidence of any violation of any constitutional rights.
There are two difficulties with this submission.
The first is procedural but nonetheless fundamental and determinative. The appellant ought to have applied to the High Court or Court of Appeal to strike out the respondent's challenge. It did not do so. Consequently, there has been no order of the lower courts dealing with the application, which in turn means that there is no order against which to mount an appeal to the Board. The issue not having been raised by way of an application to strike out below, it is simply not open for the appellant now to appeal to the Board.
The second difficulty is equally fundamental. The essence of the appellant's submission is that the Board should strike out the constitutional challenge as there is no evidence of any violation of any constitutional right. This submission is an echo of the appellant's related submission in relation to the respondent's application for leave to apply for judicial review. In that context, the appellant also submits that there is no evidence of any breach of public law duties. However, if on the evidence in relation to the appellant's public law duties there is an arguable case that has a reasonable prospect of success then the Board considers that there would be sufficient evidence of a violation of the principle of equal treatment enshrined in section 4(d) of the Constitution to render an application to strike out untenable. As will become apparent, the Board does consider that on the evidence in relation to the appellant's public law duties there is an arguable case that has a reasonable prospect of success - as a result, even if the appellant had made an application to strike out the constitutional challenge, the Board considers that the application ought to have been dismissed.
The lower courts have set out a detailed description of the factual background. Given the limited issues that arise on this appeal that description need not be repeated in full.
An essential part of the factual background is the financial emergency which engulfed CLICO and BAT so that it is appropriate in this part of the judgment to set out the statutory special emergency powers of the appellant which in those circumstances enabled the appellant to assume control of those companies, to direct them to sell their TIPs, to oversee the sale processes and to approve the sales.
The appellant is a body corporate established under the Central Bank Act, Chapter 79:02 (“CBA”) for the purpose of promoting such monetary credit and exchange conditions as are most favourable to the development of the economy of Trinidad and Tobago. It is a public authority for the purposes of section 4(d) of the Constitution so that individuals, such as the respondent, have a right to equality of treatment from the appellant in the exercise of any of its functions.
The respondent is a local company and is incorporated under the laws of Trinidad and Tobago. It is one of the largest insurance companies in the domestic market and has several affiliates, including a finance company, a trust company, and a leasing corporation. The respondent has been regulated since its incorporation in 1971, initially by the Ministry of Finance and subsequently by the appellant.
Sagicor is a Trinidad and Tobago subsidiary of Sagicor Financial Corporation Limited, which is registered in Bermuda with its head office in Barbados. An undated BAT “Board Note”, which does not clearly differentiate between Sagicor and other group companies, states that “Sagicor is an insurance provider domiciled in Bermuda with total assets of $34.0 BN...
To continue reading
Request your trial