The Central Bank of Trinidad and Tobago v Maritime Life (Caribbean) Ltd (Trinidad and Tobago)

The threshold for leave to apply for judicial review is low. The applicant needs an arguable ground with a realistic prospect of success, subject to discretionary bars such as delay or an alternative remedy.

Once leave has been granted, an appeal should succeed only where it is plainly clear that leave should not have been granted. Where the grant has also been upheld by the Court of Appeal, a second appeal requires an exceptional circumstance amounting to a clean knockout blow.

Commercial decisions by a public authority remain subject to public-law duties, including fair and equal treatment, transparency, accountability, good faith and Wednesbury rationality.

Maritime Life challenged the Central Bank’s oversight of bidding processes for the sale of Traditional Insurance Portfolios by two distressed insurers and its approval of sales to Sagicor. It sought judicial review and raised constitutional claims concerning equal treatment.

The High Court granted leave to apply for judicial review and issued an interim injunction. The Court of Appeal, by a majority, dismissed the Central Bank’s appeal against that grant. The Central Bank appealed as of right to the Privy Council, challenging the amenability and arguability of the judicial review claims and seeking to contest the constitutional challenge. The central questions were whether leave should have been granted and whether the constitutional claim could be struck out at this stage.

Lord Stephens delivered the judgment of the Board, with whom Lord Hodge, Lord Sales, Lord Hamblen and Lord Leggatt agreed. The appeal was dismissed.

1. Leave and appellate threshold. The threshold for leave to apply for judicial review is low. The applicant must show an arguable ground with a realistic prospect of success, subject to a discretionary bar. Once leave has been granted, it should stand unless the appellate court is satisfied that it plainly should not have been granted. The usual course is to proceed to the merits unless there is a clean knockout blow.
2. Because leave had been granted by the High Court and upheld by the Court of Appeal, the appeal faced an even higher threshold. The Central Bank had to establish an exceptional circumstance plainly demonstrating that leave should not have been granted. Satellite litigation over this preliminary gateway would undermine the purposes of the leave filter and the public interest.
3. Amenability. The fact that the impugned decisions concerned commercial contracts did not remove them from judicial review. A public authority’s conduct in deciding whether to enter a contract remains subject to public-law rules. The precise standards applicable are a separate question for the merits hearing. The Board accepted that fair and equal treatment, accountability, transparency, good faith and Wednesbury rationality were among the potentially applicable standards.
4. Arguability. The evidence disclosed unresolved issues concerning the third-round bidding process, including whether Sagicor’s enhanced offer was conditional or constituted a combined bid, and whether the bidding terms had been applied equally. Those matters provided an arguable case with a realistic prospect of success. The Board declined to undertake the detailed factual analysis sought by the Central Bank because it did not disclose the exceptional circumstance or knockout blow required on this appeal.
5. Constitutional challenge. The Board could not entertain a strike-out challenge raised for the first time before it, because no application had been made below and no order existed against which an appeal could be brought. In any event, the evidence supporting an arguable breach of public-law duties also provided sufficient evidential basis for the equal-treatment claim under section 4(d) of the Constitution. Strike-out would therefore have been inappropriate.

• Privy Council: The appeal was dismissed unanimously: [2022] UKPC 37.
• Court of Appeal of the Republic of Trinidad and Tobago: On 17 February 2021, the majority dismissed the appeal against the grant of leave; Rajkumar JA dissented.
• High Court: Rampersad J granted leave to apply for judicial review on 6 April 2020 and issued an interim injunction.