Former Attorney General Basil Williams SC has been unsuccessful in his attempts to avoid being sued in his personal capacity in a defamation claim which former Deputy Solicitor General, Prithima Kissoon, had filed against him.
Dismissing his application, the Caribbean Court of Justice (CCJ) made it clear that in accordance with Guyana’s law, with the exception of the President, there was nothing prohibiting an officer-holder from being directly sued.
In delivering its ruling yesterday afternoon, the Trinidad-based court of last resort for Guyana said that there was nothing in the law or any authority that removed the right to sue an actual tort-feasor for acts or omissions in the performance of their duties as agent or servant of the State.
Resultantly, the apex court affirmed the decision of the Full Court, which it said “was entitled and right to restore Mr. Williams to the suit as a defendant in his personal capacity.”
No orders were made as to costs, as Kissoon’s attorney Nigel Hughes indicated that his client is seeking none.
The pending substantive defamation claim will now take its normal course to trial before the High Court, with Williams listed as a defendant.
Kissoon initiated defamation proceedings against Williams and the Guyana National Newspapers Ltd (GNNL) for alleged defamatory words he had written and had published against her.
Williams was joined to the proceedings in his personal capacity, to which he objected and applied to the High Court to have the case struck out against him.
On April 9th, 2019, the High Court dismissed his application but gave Kissoon permission to amend her claim to add the office of the Attorney General as a third defendant, which she did. On June 5th, 2020, Williams as AG, applied to the High Court for an order striking out the claim against him in his personal capacity.
Williams contended that being joined in his personal capacity, breached the State Liability and Proceedings Act Cap. On June 26th, the High Court granted this application and struck Williams from the claim.
Kissoon later appealed that decision to the Full Court—which comprised three judges—one of whom was her brother-in-law.
The Full Court allowed her appeal and restored Williams as first defendant in the proceedings.
Referencing records submitted to the Court, Justice Adrian Saunders who read the ruling yesterday said that the decision of the Full Court was delivered to the parties via email on March 31st, 2021, but Williams claimed not to have received it; as it was emailed to an incorrect address, and had had only learnt of it some two weeks after on April 13th.
On April 28th, 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 filed outside of the fourteen-day time period and so he also filed an application to extend the time to lodge that appeal.
This application was struck out by the judge sitting in Chambers on the basis that he did not have any jurisdiction.
Williams then moved a full Panel of the Court of Appeal seeking leave to appeal the decision of the Full Court and an extension of time to lodge that appeal. He relied on the fact that the decision was sent to an incorrect email address and that he did not learn of it until April 13th.
The full Panel dismissed the appeal and found that the intended appeal had no merit as the provisions of the Act did not prevent a person from suing Williams in his personal capacity.
Williams would then apply to the CCJ for special leave to appeal the decision of the full panel of the Court of Appeal; arguing that the composition of the Full Court with Kissoon’s brother-in-law, justified him being granted special leave to appeal the decision of the full panel of the Court of Appeal which affirmed the Full Court’s decision.
Essentially, Williams sought to have the order of the High Court striking him from the claim in his personal capacity restored.
Justice Saunders noted in the ruling that in respect of the constitution of the Full Court, the CCJ considered the authorities relating to bias and principles of judicial conduct and found that Kissoon’s brother-in-law ought to have recused himself given their relationship.
Nevertheless, the Court found that that issue was not determinative of the application for special leave because it still assessed whether Williams had otherwise met the test for being granted special leave—that test being whether the intending appellant demonstrates a realistic prospect of the appeal being successful.
In determining the prospects of success of the appeal, Justice Saunders said the regional appellate court then considered and interpreted Sections 3, 9, and 10 of the Act. The Court noted that the Act was modelled after the United Kingdom’s Crown Pro-ceedings Act 1947.
The UK Act Justice Saunders noted, was enacted to make the Crown vicariously liable in tort for the acts of their servants and agents. He went on to state that Section 2 of the UK Act and Section 3 of the Act impose liability on the Crown (the State in the case of Guyana) 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.
Justice Saunders said that the Court further considered the Act and found that “there was nothing in the Act or any authority that removed the right to sue the actual tort-feasor for acts or omissions in the performance of their duties as agent or servant of the State.”
The Court then therefore went on to find that the Full Court was “entitled and right to restore Mr Williams to the suit as a defendant in his personal capacity.”
In the circumstances, his application for special leave was dismissed.
The matter was presided over by Justice Saunders, together with Justices Jacob Wit and Winston Anderson.
Background
In December of 2017, Kissoon mounted the defamation challenge against Williams after a series of allegations traded by the two in the press amidst which she was dismissed, over what Williams described as her mishandling of State cases.
Following complaints she made about him to the Public Service Commission (PSC) surrounding her dismissal, Williams then made scathing accusations against Kissoon accusing her of “gross irresponsibility” and a “lack of professionalism.”
Williams—the Attorney General (AG) at the time—contended that Kissoon was not competently executing her duties to the State, but more in the interest of the political Opposition of the time, which led to a deliberate undermining of representation regarding cases brought against the then government.
Williams had said in a statement that “During the period of November 2015 to January 2017, an investigation was undertaken in the litigation department at the Ministry after it was discovered that Ms. Kissoon, who was tasked with the responsibility of conducting cases of grave importance to the State’s interest, had committed several breaches and violations under the rules and regulations of the Public Service Commission.”
The controversy was sparked by the State’s handling of a case in which former President Bharrat Jagdeo had been accused of racially inflammatory language.
The appeal brought by the State against a decision by the High Court that the magistrate had no jurisdiction was thrown out by the Guyana Court of Appeal in January of 2017 as an abuse of the court’s process.
Williams blamed Kissoon for that outcome which she denied; issuing her own accusations against him; further accusing the then-AG of abusing and vilifying her in the press.
Among other things, Williams had said “Our government can no longer continue to sustain the Deputy Solicitor General Ms. Prithima Kissoon’s unrelenting undermining of its cases. Having been employed by former Attorney General Mr. Anil Nandlall under the PPP/C regime, as Deputy Solici-tor General, and paid over one million dollars ($1,000,000) and other benefits per month, Ms. Kissoon has been openly supportive of Mr. Nandlall and the PPP/C even when seated on government’s bench.
For her part, Kissoon had denied Williams’ version of the trajectory of the case before the Guyana Court of Appeal. In undated correspondence to the PSC, Kissoon accused the then-AG of failing to give instructions or examining documents prepared by her prior to being filed or presented to the court.
“The Attorney General, Mr. Basil Williams, has failed to approve or sign written submissions prepared by me or examine pleadings despite those documents being sent to him via email or being given to his Confidential Secretary, Ms. Demi Hipplewith, Ms. Andrea Marks and other assistants he has retained over the past year,” Kissoon among other things had stated in her letter to the PS; describing the conduct as constructive dismissal, stating that she was being prohibited and restrained from performing her functions.
