Derek Achong

Lawyers rep­re­sent­ing in­sur­ance com­pa­ny Mar­itime Life (Caribbean) Lim­it­ed and the Cen­tral Bank are cur­rent­ly locked in ne­go­ti­a­tions over the fu­ture of a law­suit over the pro­posed sale of Cli­co and its sub­sidiary British Amer­i­can In­sur­ance (Trinidad) Lim­it­ed (BAT)’s in­sur­ance port­fo­lio.

When the law­suit brought by Mar­itime Life came up for a vir­tu­al hear­ing be­fore Jus­tice Devin­dra Ram­per­sad yes­ter­day, the par­ties’ lawyers in­di­cat­ed that they were in talks over the sub­stan­tive is­sues raised in the case as well as an ap­pli­ca­tion from the Cen­tral Bank to lift an in­junc­tion block­ing the pro­posed sale.

Guardian Me­dia un­der­stands that in the ap­pli­ca­tion the Cen­tral Bank is con­tend­ing that it should no longer be bound by the in­junc­tion af­ter it re­lin­quished emer­gency con­trol of the com­pa­nies to their share­hold­ers in ear­ly De­cem­ber, last year.

Jus­tice Ram­per­sad gave the par­ties un­til next Mon­day to re­port back on the progress of the dis­cus­sions in re­la­tion to the in­junc­tion. In the event that the par­ties can­not come to an agree­ment, Ram­per­sad is ex­pect­ed to is­sue di­rec­tions for the de­ter­mi­na­tion of the ap­pli­ca­tion.

Jus­tice Ram­per­sad al­so ad­journed the sub­stan­tive case to a date in Sep­tem­ber, which is to be sub­se­quent­ly con­firmed.

The sub­stan­tive case brought by Mar­itime Life in late 2019 cen­tres around the bid­ding process em­ployed for the sale by the Cen­tral Bank, which as­sumed con­trol of the com­pa­nies af­ter the Gov­ern­ment bailed them and their par­ent com­pa­ny CL Fi­nan­cial (CLF) out in 2009. CLF is cur­rent­ly un­der liq­ui­da­tion to re­pay its re­main­ing debt to the Gov­ern­ment and oth­er cred­i­tors.

Al­though Mar­itime emerged as the sole par­tic­i­pant in the sec­ond round of bid­ding, it did not win the bid.

In­stead, the com­pa­ny was in­vit­ed to par­tic­i­pate in a third round of bid­ding dur­ing which it bid $7.86 bil­lion for Cli­co’s port­fo­lio and $516.8 mil­lion for BAT’s.

While the com­pa­ny was in­formed that it was not the pre­ferred bid­der, Fi­nance Min­is­ter Colm Im­bert an­nounced that Bar­ba­dos-based in­sur­ance gi­ant Sagi­cor was cho­sen de­spite pro­vid­ing a bid that was $300 mil­lion less than Mar­itime’s.

Af­ter the law­suit was filed, Cen­tral Bank Gov­er­nor Dr Alvin Hi­laire filed an af­fi­davit in re­sponse in which he ex­plained the process that was em­ployed by in­ter­na­tion­al con­sul­tan­cy firm Oliv­er Wyman.

Hi­laire not­ed that the pre­ferred bid­der was not se­lect­ed sole­ly based on the high­est bid. He claimed that while the high­est bid was the third-ranked cri­te­ria for se­lec­tion, he not­ed that Sagi­cor was se­lect­ed based on its rel­a­tive size, ex­pe­ri­ence, fi­nan­cial strength, reg­u­la­to­ry at­ti­tude, and fu­ture risk-ab­sorb­ing ca­pac­i­ty.

He al­so point­ed to a priv­i­lege clause in the ten­der doc­u­ment, which in­di­cat­ed that the Cen­tral Bank was free to al­ter and ter­mi­nate the pro­ce­dure and was not oblig­ed to ac­cept the high­est or any of­fer.

Mar­itime was grant­ed the in­junc­tion and leave to pur­sue the law­suit by Jus­tice Ram­per­sad, who ruled that it had pre­sent­ed a valid case with a rea­son­able prospect of suc­cess at tri­al.

The Cen­tral Bank filed a pro­ce­dur­al ap­peal in which it con­tend­ed that the case should not be al­lowed to pro­ceed to tri­al.

In Feb­ru­ary 2021, the Ap­peal Court de­liv­ered a ma­jor­i­ty de­ci­sion, in which two Ap­pel­late Judges agreed with Jus­tice Ram­per­sad’s de­ci­sion and one dis­sent­ed.

In Ju­ly, last year, the Privy Coun­cil up­held the two con­sis­tent de­ci­sions by the lo­cal courts.

In the judge­ment, Lord Ben Stephens not­ed that the Privy Coun­cil, as the coun­try’s fi­nal ap­pel­late court, is slow to over­turn two con­sis­tent rul­ings by lo­cal courts over the re­al­is­tic prospect of suc­cess in ju­di­cial re­view cas­es.

He stat­ed that the Cen­tral Bank failed to prove that there were ex­cep­tion­al cir­cum­stances to war­rant over­turn­ing the lo­cal courts.

“The Board 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,” Lord Stephens said.

He al­so point­ed out that pre­lim­i­nary chal­lenges such as the one mount­ed by the Cen­tral Bank should not be used to de­rail and de­lay cas­es with strong pub­lic in­ter­est con­sid­er­a­tions.

“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,” Lord Stephen said.

Lord Stephens al­so re­ject­ed the Cen­tral Bank’s sec­ondary ground of ap­peal over Mar­itime’s abil­i­ty to pur­sue a con­sti­tu­tion­al as­pect of its case, in which it is al­leg­ing that its right to equal­i­ty be­fore the law was in­fringed as Sagi­cor was al­leged­ly treat­ed more favourably than it.

He not­ed that as the is­sue was not raised in the lo­cal courts it could not be pur­sued on a fi­nal ap­peal.

“Fur­ther­more, there is ev­i­den­tial ma­te­r­i­al sup­port­ing the chal­lenge so that even if the ap­pel­lant had made an ap­pli­ca­tion to strike out the con­sti­tu­tion­al chal­lenge, the Board would have dis­missed that ap­pli­ca­tion,” Lord Stephens said.

The Cen­tral Bank was rep­re­sent­ed by Ian Ben­jamin, SC, Ker­wyn Gar­cia, and Dionne Springer. Ed­ward Fitzger­ald, KC, Fyard Ho­sein, SC, Joseph Mid­dle­ton, Sasha Bridge­mo­hans­ingh, An­nette Mam­chan, and Aadam Ho­sein rep­re­sent­ed Mar­itime Life.

—Derek Achong