Central Bank loses Privy Council appeal

THE CENTRAL Bank has again lost its challenge against the granting of leave to Maritime Life (Caribbean) Ltd to pursue a claim over its exclusion in the bid for Clico and British American Trinidad (BAT) in 2019.

In its lawsuit, Maritime accused the bank of acting irrationally, unfairly, and unconstitutionally by entering into sale and purchase agreements with Sagicor Life for an undisclosed sum.

In challenging the sale, the insurance firm was granted leave by Justice Devindra Rampersad in April last year. He also granted an interim injunction preventing the bank from finalising the transfer of the portfolios to Sagicor.

Maritime’s bid for the Clico portfolio was approximately $7.86 billion, and $516.8 million for BAT. It claimed its bid was some $400 million more than Sagicor’s.

The bank appealed Rampersad's leave but in February 2021, Justices of Appeal Ronnie Boodoosingh and James Aboud held, in separate but unanimous decisions, that Rampersad was not wrong and dismissed the bank’s appeal. Justice Peter Rajkumar dissented.

The Central Bank then appealed to the Privy Council which on Thursday said it agreed with the initial analysis of Rampersad and the majority in the Court of Appeal that “there is evidential material which gives rise to an arguable case with a realistic prospect of success that the appellant acted unlawfully in terms of the public law standard, by affording unequal treatment to the respondent in comparison with Sagicor.”

Presiding over the bank’s appeal were Lords Hodge, Sales, Stephens, Hamblen, and Leggatt. Stephens wrote the unanimous decision.

Stephens pointed out that in judicial review claims, the preferred course was to proceed to hear the merits of the case unless there is some “clean knockout blow.”

The threshold was even higher, he said, when two previous courts had upheld the granting of leave to Maritime.

Of the bank’s appeal, Stephens said, “The Board has examined with care the detailed critique of the evidential material provided on behalf of the appellant but considers that it does not approach the requisite standard of some exceptional circumstance.”

The law lords also said the grant of leave in judicial review claims should not become an instrument of delay and increased costs with a series of appeals.

They said judicial review proceedings affect not only the parties but also the public interests.

In their ruling, the law lords also threw out an argument by the bank of Maritime’s constitutional challenge argument. Maritime said it had a constitutional right to equal treatment which was breached by the bank in that it did not receive the same standard of treatment that Sagicor did.

In their ruling, appellate judges Boodoosingh and Aboud pointed out that a substantial amount of public funds were invested in the insurance companies, providing a “plant for scrutiny of the decisions (of the Central Bank).”

In its claim, Maritime alleged Sagicor’s bid was a conditional one yet it was accepted outside the bidding requirements and there was no due diligence over the bidding process.

Representing the bank were Ian Benjamin, SC, Kerwyn Garcia and Dionne Springer.

Edward Fitzgerald, KC, Fyard Hosein, SC, Joseph Middleton, Sasha Bridgemohansingh, Aadam Hosein and Anette Mamchan represented Maritime.