Justice Priya Sewnarine-Beharry yesterday dismissed an application by former Attorney General Basil Williams SC that she recuse herself from presiding over a 2017 libel case brought against him by now Attorney General Anil Nandlall SC in relation to Commonwealth Law Reports.
Williams’ application had its genesis in the action filed by Nandlall on April 4th, 2017, for damages for libel and slander which he alleges Williams published against him at a press conference.
Williams in his January, 2021 application for recusal said that the libel action came up for hearing before Justice Sewnarine-Beharry on a number of occasions and that the judge on December 5th, 2019 ordered a halt to the trial until the completion of criminal proceedings against Nandlall which were connected to the allegations that Williams had made.
According to Williams, the judge had said that should the criminal charges be dismissed, then the libel suit would be sustained and conversely if Nandlall was convicted, then the libel suit would be dismissed.
Williams argued in his application that the staying of the trial until the completion of the criminal proceedings raised the likelihood of bias on the part of the judge and also a pre-determination of the issues raised by Nandlall in his statement of claim.
The former AG went on to argue that staying the matter for the reasons given “conveys that Justice Sewnarine-Beharry attaches greater importance to the outcome of the charge rather than the charge itself”.
Williams contended that the laying of the criminal charge against Nandlall established his defence of truth and fair comment on a matter of public interest.
Williams had noted in his recusal application that the criminal charges against Nandlall were discontinued on October 16th, 2020 upon the directions of the Director of Public Prosecutions (DPP) but said that during the pendency of the libel action “there has been a great disparity in the award of costs” by Justice Sewnarine-Beharry against him as compared with awards against Nandlall which he said again raises the appearance of bias.
In her ruling yesterday, Justice Sewnarine-Beharry said that “the fact that a judge has decided an issue in a particular way, and is likely to decide it in the same way when it arises again, does not amount to prejudgment which may require disqualification in order to avoid an apprehension of bias. The reasonable apprehension which should lead to disqualification must be that the judge will not decide the case impartially or without prejudice or bias, not simply that he or she will decide the case adversely to one party”.
She said that the court’s decision to stay the proceedings pending the hearing of the charge against Nandlall was in furtherance of the overriding objective of this Court to do justice to the parties. The judge said that it was also in keeping with this Court’s responsibility to actively manage cases in accordance with Rule 25.02(1)(c)(iv) of the CPR (Civil Procedure Rules) 2016. In this regard Rule 25.02(1)(c)(iv) empowers the Court in actively managing cases to stay the whole or part of any proceedings generally or until a specified date or event. It is of particular importance, she said, that this decision of 5 December 2019 was not appealed.
The judge noted that Williams had complained that the “inordinate award” of costs by the Court against him demonstrated an appearance of bias by this Court. The judge however said that the factual matrix detailed on the flysheet of the Court’s record demonstrates that this contention is “unmeritorious and that this Court has awarded more costs to the Applicant/ Defendant (Williams) and not the Respondent/ Claimant”.
• On 13 September 2017, the Claimant’s application for injunctive relief filed on 4 April 2017 was refused. Costs were awarded to the Defendant (Williams) in the sum of $30,000.
• On 6 November 2017, a Notice of Application seeking an order dismissing the Claim for noncompliance with the CMC timetable filed on 3 November, 2017 filed by the Defendant was dismissed due to procedural irregularities. Costs in the sum of $30,000 were awarded to the Claimant (Nandlall).
• On the said date, the Court refused an oral application by Counsel for the Claimant for an extension of time to comply with the CMC timetable. The Court of its own volition dismissed the claim and ordered prescribed costs to the Defendant (Williams) based on the twenty-five million dollar claim filed by the Claimant. (This decision was later reversed by the Full Court.)
• On 15 April 2019, an application by the Claimant seeking an order striking out paragraphs of several witness statements filed by the Defendant was granted. Costs were awarded to the Claimant (Nandlall) in the sum of $50,000.
• On 15 April 2019, the Court granted an Application for an extension of time to file witness statements filed by the Defendant on 1 March 2019. Costs awarded to the Claimant (Nandlall) in the sum of $50,000.
• On 19 October 2020 the court dismissed an application by the Defendant to examine the Claimant in writing by discovery. Costs were awarded to the Claimant (Nandlall) in the sum of $250,000.
These awards of costs were never appealed, the judge said.
The judge added that the decisions of the Court to stay the proceedings and award of costs against the Applicant/Defendant are judicial decisions and rulings that could have formed the basis of an appeal and are insufficient to constitute a valid ground for recusal according to Walsh vs Ward.
“In conclusion, an informed, fair-minded, and reasonable observer would NOT, in all of the circumstances of this particular case, have formed an objective opinion that there was a real likelihood that this Court might NOT bring an impartial and unprejudiced mind to the resolution of the question involved.
“The Applicant/Defendant’s doubts and fears are not objectively justified to the requisite standard and the Notice of Application filed on 13 January 2021 is accordingly dismissed. Costs are awarded to the Respondent/Claimant in the sum of $150,000 to be paid by the Applicant/Defendant on or before 14 January 2022. In determining the quantum of costs to be awarded in this matter this court took into consideration that the applications filed by the Applicant / Defendant after 2020 (including the present application) appear to be attempts to stall and/or delay the hearing of the substantive claim which is ripe for hearing and ought not to be encouraged”, the judge said.
Nandlall is seeking damages in excess of twenty-five million dollars for alleged slander published on the 24th day of March, 2017, at a press conference, hosted at the National Communication Network Inc.;
(ii) damages in excess of twenty-five million dollars for alleged libel published on the 24th day of March, 2017, at a press conference, hosted at the National Communication Network Inc.;
(iii) damages in excess of twenty-five million dollars for alleged libel published in the Guyana Times Newspaper, at page 11, March 25th, 2017;
(iiii) damages in excess of twenty-five million dollars for alleged slander published during an outreach programme in Berbice, on the 26th March, 2017;
(v) damages in excess of twenty-five million dollars for alleged libel published by Demerarawaves on the 27th day of March, 2017;
(vi) exemplary/aggravated damages;
(vii) interest on all damages awarded pursuant to Section 12 of the Law Reform (Miscellaneous Provisions) Act Chap 6:02;
(viii) an injunction restraining the Defendant, by himself, his servants and/or agents from publishing, or caused to be published or saying or caused to be said or repeating of and concerning the Claimant, the offending statements in relation to the Commonwealth Law Reports.
