Former AG Basil Williams loses bid to have libel suit against him struck out

In a ruling delivered on Tuesday, the Caribbean Court of Justice (CCJ) found that former Attorney General Basil Williams, SC, could be sued in his personal capacity on account of his then status as a public office holder.
Williams had essentially argued that the State Liability and Proceedings Act had immunised him from the court process, but the regional court described his argument as a “fallacy”, declaring that “no one is above the law.”
In December 2017, Prithima Kissoon, former Deputy Solicitor General in the Attorney General’s Chambers, initiated defamation proceedings against Williams and the Guyana Chronicle for allegedly defamatory words written by Williams and published by the newspaper.
The dispute had arisen as Williams, while holding the office of the Attorney General, had believed that Kissoon was sympathetic to the then Opposition PPP/C, and that that sympathy had extended to deliberately undermining court cases involving the Attorney General’s Chambers and the Opposition. After the appeal in the matter of the Attorney General vs Jagdeo, which was under Kissoon’s care and control, was dismissed, Williams had ordered her off all political cases.

According to Kissoon, Williams abused and vilified her in the press.
Ultimately, each of these parties had published in the press their side of this sorry episode, resulting in the proceedings. Williams was joined to the proceedings in his personal capacity as the first named defendant. He objected to this, and applied to the High Court to have the case struck out against him.
On April 9, 2019, the High Court dismissed his application, but permitted Kissoon to amend her claim to add the office of the Attorney General as a third defendant, which she did.
More than a year later, on June 5, 2020, the Attorney General applied to the High Court for an order striking out the claim against Williams in his personal capacity. It was contended that the joinder of Williams in his personal capacity had breached the State Liability and Proceedings Act.
Then on June 26, 2020, the High Court granted this application and struck Williams out of the claim. Kissoon appealed this decision to the Full Court, which comprised two judges, one of whom was her brother-in-law. The Full Court allowed Kissoon’s appeal and restored Williams as the first defendant in the proceedings. The decision was delivered to the parties via email on March 31, 2021, but Williams alleged that the decision was emailed to an incorrect email address, therefore he did not learn of the decision until April 13, 2021.

Fifteen days later, Williams filed an application for leave to appeal the decision of the Full Court to a judge in chambers in the Court of Appeal of Guyana.
This application was filed outside of the 14 days, 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 to 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. In so doing, 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 13, 2021. The Court of Appeal, however, dismissed his appeal, having found that his intended appeal had no merit, as the provisions of the Act did not prevent a person from suing him in his personal capacity.
Williams then applied to the CCJ for special leave to appeal the decision of the Court of Appeal. He argued that the composition of the Full Court justified his being granted special leave to appeal the decision of the Court of Appeal, which affirmed the Full Court’s decision. In essence, Williams was seeking to have the order of the High Court striking him from the claim in his personal capacity restored. His application for special leave was only opposed by Kissoon.
According to the regional court, in respect of the constitution of the Full Court, it 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 Kissoon.
“Nevertheless, the Court found that this issue was not determinative of the application for special leave, because this Court must still assess whether Williams has 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,” the CCJ said in a summary of its ruling.
The intending appellant, the apex court said, may do so if, for example, there appears to be an egregious error of law, or there was a possible miscarriage of justice. To determine the prospects of success of the appeal, this Court then considered and interpreted Sections 3, 9, and 10 of the Act, which was modelled after the United Kingdom’s Crown Proceedings Act 1947 (the UK Act).
It explained that the UK Act was enacted to make the Crown vicariously liable in tort for the acts of their servants and agents. “Section 2 of the UK Act and Section 3 of the State Liability and Proceedings Act impose liability on the Crown (the State in the case of republican 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.”
The CCJ said it further considered the State Liability and Proceedings 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 agents or servants of the State.
Given its findings, the CCJ held that the Full Court was entitled and right to restore Williams to the suit as a defendant in his personal capacity, and therefore dismissed his appeal. The parties agreed that no costs would be imposed.
If a public official is vexed by the bringing of unmeritorious suits against them, the rules of court contain adequate provisions for the court summarily to strike out actions that are frivolous or that stand no realistic chance of success, the CCJ noted.
It pointed out: “The fundamental purpose of the State Liability and Proceeding Act is not to immunise public servants from suit for such a public servant’s allegedly tortious acts, but to assure any person who is harmed by such acts, once they are carried out in the due execution of their official duties, that the State will be liable for any damages awarded, and that the public official will not personally have to pay the same.”