Maharaj v Petroleum Company of Trinidad and Tobago Ltd

At the leave stage of a judicial-review claim, the threshold is low: the applicant need show an arguable ground with a realistic prospect of success. A refusal to disclose an exempt document may be arguable where the authority arguably failed to consider public-interest benefits of disclosure, even though the proper reviewing approach remains unsettled. Possible approaches include ordinary rationality review, a hybrid model, or independent judicial balancing. Arbitration confidentiality is relevant but not absolute. Its weight may be reduced where statements came from the authority’s own employees. Transparency and accountability may provide significant countervailing interests. A general concern about political influence does not, without more, amount to reasonable evidence of the specified statutory abuses or other matters.

Mr Maharaj sought under the Freedom of Information Act 1999 disclosure of two employee witness statements prepared for Petrotrin’s confidential arbitration with World GTL. Petrotrin refused, relying on the exemption for information communicated in confidence and on the public interest in preserving arbitration confidentiality.

Mr Maharaj sought leave for judicial review under the Judicial Review Act 2000, relying on both limbs of section 35 of the Freedom of Information Act. des Vignes J dismissed the application on 31 March 2017. The Court of Appeal dismissed his appeal on 10 July 2017. The central issue before the Board was whether the refusal disclosed an arguable ground for judicial review with a realistic prospect of success.

Disposition. The Board allowed the appeal in so far as it concerned limb (ii) of section 35 of the Freedom of Information Act 1999, and dismissed it in so far as it concerned limb (i).

1. Leave threshold. The threshold for leave to apply for judicial review is low. The court asks only whether there is an arguable ground with a realistic prospect of success. The Board applied governing principle (4) in Sharma v Brown-Antoine [2006] UKPC 57 to the present application.
2. Limb (ii). The Board did not decide the correct final approach to review under the public-interest limb of section 35. The possible approaches included ordinary rationality review, a hybrid approach under which the court might balance the interests if the public authority had failed to do so, and an approach under which the court itself conducted the balancing exercise. On each of the first two approaches, it was arguable that Petrotrin had failed to consider any public-interest benefits favouring disclosure. On the third approach, there was a realistic prospect that the court might itself order disclosure after balancing the competing interests.
3. Relevant interests. The confidentiality obligation in Article 30 of the LCIA Arbitration Rules was relevant but not absolute. Its weight might be attenuated because the statements were made by Petrotrin’s own employees and the information might have been obtainable independently of the arbitration. Possible benefits of disclosure included transparency and accountability concerning the joint venture, the guarantee, Mr Jones’s public appointments, and the decision to abandon Petrotrin’s claim against him.
4. Limb (i). The separate limb required reasonable evidence that significant abuse of authority, neglect of official duty, injustice, danger to health or safety, or unauthorised use of public funds had occurred or was likely to occur. A public interest in understanding possible political influences was materially different from such evidence. No realistic prospect of success was shown on this limb.

• Privy Council: In [2019] UKPC 21, the Board allowed the appeal concerning limb (ii) of section 35 and dismissed it concerning limb (i).
• Court of Appeal of the Republic of Trinidad and Tobago: Dismissed Mr Maharaj’s appeal on 10 July 2017.
• High Court: des Vignes J dismissed the application for leave to apply for judicial review on 31 March 2017.