RICHARD CLAYTON QC WINS FREEDOM OF INFORMATION APPEAL BEFORE PRIVY COUNCIL
By Richard Clayton QC
On 20 May 2019 the Privy Council decided an important case concerning the Trinidad Freedom of Information legislation. The application for judicial review challenged the refusal of Petrotrin (Trinidad’s the national oil company) to disclose witness statements filed in international arbitration proceedings on the grounds that these were confidential and that the public interest did not warrant their disclosure.
In 2005 Petrotrin went into a joint venture with World GTL to build, finance and operate a gas-to-liquids plant in Trinidad. Its Executive Chairman, Malcolm Jones, had an important role in the decision to proceed with the joint venture. But the joint venture then collapsed in 2009 when Petrotrin defaulted after construction delays and extensive cost overruns resulting in billion dollar losses. World GTL then brought arbitration proceedings, alleging that Petrotrin’s termination of the venture had been in breach of duty and claimed compensation. Petrotrin filed witness statements in response, which were confidential under the London Court of International Arbitration rules.
In April 2013 Petrotrin brought commenced a claim against Mr Jones for alleged negligence in the conduct of Petrotrin’s business and for breach of fiduciary duty based on advice from two Senior Counsel.
In September 2015 a general election took place in Trinidad, which resulted in a change of government. Shortly afterwards, a new board of directors of Petrotrin was appointed. In October 2015 Mr Jones was appointed by the new Government to the Cabinet Standing Committee on Energy and the Minister of Communications was reported as saying that he thought that the claim against Mr Jones was heading in the direction of being dropped.
Advice was then obtained from Leading Counsel who supported the decision to take proceedings in the first place. He now advised in a single paragraph that the witness statements in the arbitration proceedings (which concerned entirely different issues), nevertheless, meant that the claim would fail- because Petrotrin had made a bad business deal, not because Mr Jones was negligent. However, the Advice did not identify what was said in the witness statements which caused Counsel to change his mind, and these were not released into the public domain.
The Privy Council reversed the judgments from the Trinidad High Court and Court of Appeal by granting leave to take judicial review proceedings. The Board decided that giving access to the witness statements was justified in the public interest, having regard to the benefits and damage that might arise from doing so. Trinidad case law showed that the Courts, themselves, have a role as the primary decision-when determining how public interest factors should be balanced for and against disclosure.
The Board held that it was arguable that disclosure was of significant weight in securing transparency and accountability, and that there were some grounds for thinking that the decision to abandon the claim against Mr Jones may have been influenced by political factors.
A copy of the judgment is here.