CCJ says former Guyana AG can be sued in defamation case
The Trinidad-based Caribbean Court of Justice (CCJ) has dismissed an application by former Guyana attorney general, Senior Counsel Basil Williams, who sought special leave to appeal a lower court ruling refusing to grant him leave to appeal a decision of the Full Court of the Supreme Court of Guyana.
In its ruling, the CCJ, which is Guyana’s highest court, also upheld the lower court’s ruling not to grant Williams an extension of time to lodge the appeal
Former deputy solicitor general in the Attorney General’s office, Prithima Kissoon, had sued Williams and the Guyana National Newspaper Ltd for defamation.
The dispute arose because Williams while holding the office of Attorney General, was dissatisfied with the manner in which Ms Kissoon handled certain political cases involving the then opposition People’s Progressive Party/Civic (PPP/C).
Williams ordered her off all political cases after the appeal in a matter between the Attorney General v Bharrat Jagdeo, which was under Ms Kissoon’s care and control, was dismissed.
The former solicitor general argued that Williams abused and vilified her in the press and as a result she sued him in his personal capacity for defamation.
But Williams applied to strike his name from the claim arguing that the Attorney General of Guyana ought to be sued instead. The High Court of Guyana dismissed Williams’ application but gave leave to Ms Kissoon to join the Attorney General to the claim, which she did. Upon an application by the Attorney General, the High Court subsequently struck Williams from the claim.
The former solicitor general applied to the Full Court to review the decision to strike Williams from the claim. The application was heard by a judicial panel of the Full Court, of which Ms Kissoon’s brother-in-law was a member.
The Full Court restored Williams as a party to the claim. The decision was delivered via email on 31 March 2021, but Williams said that he only learnt of the decision on April 13, 2021, because an incorrect email address was used while attempting to dispatch it to him.
On April 28, 2021, Williams filed an application for leave to appeal the decision of the Full Court to a judge in chambers in the Court of Appeal. This application was outside of the required 14 day time period, and as a result, he also filed an application to extend the time to lodge that appeal.
But the judge in chambers dismissed Williams’ application on the ground of lack of jurisdiction. The former attorney general then applied to a full Panel of the Court of Appeal to review the decision of the Full Court.
However, on July 14 last year, the full Panel of the Court of Appeal dismissed Williams’ application for leave to appeal the decision of the Full Court, and for an extension of time to lodge that appeal, as the intended appeal had no merit.
On August 23, last year, Williams applied to the CCJ for special leave to appeal the decision of the Court of Appeal. This application was opposed by Kissoon.
Williams argued that the order of the High Court striking him from the claim in his personal capacity should be restored. He submitted that the Full Court’s decision was tainted with bias. He also argued that joining him to the claim breached sections 3, 9, and 10 of the State Liability and Proceedings Act Cap 6:05 (the State Liability Act).
The CCJ considered the authorities relating to bias and the Bangalore Principles of Judicial Conduct and found that the judge of the Full Court ought to have recused himself given his close relationship with Ms Kissoon, the appellant before him.
Nevertheless, the CCJ found that this issue was not determinative of the application for special leave because the CCJ still had to assess whether Williams satisfied the test for obtaining special leave, that is, whether the intending appellant demonstrated a realistic prospect of the appeal being successful.
The CCJ noted that to determine the prospect of success of the appeal, it considered and interpreted the State Liability Act.
The Court noted that the State Liability Act was modelled after the United Kingdom’s Crown Proceedings Act 1947, ‘the UK Act’. Section 2 of the UK Act and section 3 of the State Liability Act both impose liability on the Crown in cases where torts are committed by the agents or servants of the Crown, or State as the case may be, in the course of the execution of their duties.
The CCJ found that there was nothing in the Act or any authority that removed the right of an injured party to sue the person who committed the tort for acts or omissions in the performance of their duties as an agent or servant of the State.
The CCJ, therefore, found that the Full Court was entitled and right to restore Williams to the suit as a defendant in his personal capacity. It dismissed the application for special leave and ordered Williams to pay Ms Kissoon’s costs.
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