Nandlall withdraws contempt proceedings against AG

-after compliance with court order

Basil Williams

With Attorney-General (AG) Basil Williams finally having complied with a court order to operationalise the Judicial Review Act (JRA), his predecessor Anil Nandlall on Friday officially withdrew contempt proceedings he had filed against him.

With Williams flouting the order made by the Chief Justice earlier this year to bring the Act into force no later than July 31st, Nandlall had moved to have the court hold Williams in contempt and jail him until he complied.

Williams would later blame a “mix up” at his office for a wrong date being printed on the initial commencement order he issued for the activation of the JRA, in addition to claiming that he was not personally served with the order and was ignorant of its existence, despite appealing it.

Anil Nandlall

A week before Friday’s scheduled hearing of the matter before Justice Navindra Singh, however, the AG filed an application seeking to have the contempt proceedings against him withdrawn, advancing that he had since enforced the JRA.

Speaking to the media after the in-chambers hearing on Friday morning, Nandlall confirmed the withdrawal of his application, while noting that it is no longer necessary, given that the AG has since brought the JRA into operation.

According to Nandlall, Williams “took us through a very circuitous and torturous route,” where he first of all avoided implementation of the Act as well as the order which compelled him to implement it.

Nandlall said that given the Act is now retroactively in force in keeping with the Chief Justice’s order, he would have achieved his objective of bringing the contempt proceedings in the first place.

Given also that there are more “matters of national importance” and his appreciation for the fact that the judicial system has an extensive backlog of cases, Nandlall said he thought it would be best in the public’s interest and the administration of justice that the system not be further clogged with litigation which would have lost its purpose.

So against that backdrop, Nandlall noted that he had no objections to the withdrawal, which was allowed by Justice Singh.

Prior to Williams issuing a second commencement order to bring the Act into force at the deadline set by the court, he had announced that it would have become operationalised on January 1st, 2019. 

Claiming that he had not been personally served with the court order, Williams in his withdrawal application had argued that it was trite law that the Court lacked jurisdiction to proceed to hear the contempt application where ex facie there was no evidence of personal service of the Order on him.

He argued that in the circumstances, the contempt proceedings amounted to a flagrant abuse and misuse of the processes, while adding that it was “scandalous, frivolous and vexatious” and as such ought to be set aside and dismissed with substantial costs.

According to Nandlall, however, the proceedings were never driven by any personal vendetta against the Attorney General. He said that out of deference to the Court, he could not withdraw the matter earlier since he needed to properly appear before the judge by whom the matter was set for hearing to seek leave to withdraw.

Nandlall said it would have been imprudent and disrespectful for a lawyer or litigant to unilaterally and without permission of the court withdraw a matter with which it had already been seized.

With the matter having been withdrawn, Justice Singh imposed $25,000 costs in favour of Nandlall, which has to be borne by the state. This is in addition to a $250,000 sum altogether imposed by Chief Justice Roxane George and Justice of Appeal Rafiq Khan; the latter dismissed an interim stay of execution of the judgment and orders of Justice George being sought by Williams.

The AG had filed for the stay until the determination of the summons and also a substantive appeal against her ruling, which is still before the Court of Appeal.

Solicitor General Kim Kyte-Thomas, who represented the AG, gave an undertaking that the state will honour its obligations to fully paying all costs owed no later than October 12th.

Meanwhile, Nandlall took issue with the state’s retention of Barbadian Queen’s Counsel Ralph Thorne, who was present at Friday’s hearing along with the Solicitor General. He opined that Thorne being brought here “must be costing the state another few thousand US dollars.”

Nandlall expressed the belief that this was absolutely unnecessary, while adding that it amounted to haemorrhaging of public funds all over again. He added that the entire proceedings could have been avoided had the AG enforced the Act when he initially should have two years ago.

Nandlall said he placed the entire saga at Williams’ feet.

It had been Williams’ claim that Justice George’s order to operationalise the JRA by July 31st was only brought to his attention just before the August 9th decision of Justice Khan, 10 days after the date set by Justice George for publication of the commencement order for the JRA.

Williams, in his withdrawal application, had said that Justice Khan’s order was entered 14 days after on August 14th, after the date set by the Chief Justice for publication of the commencement order for the JRA.

The AG advanced that notwithstanding that personal service of the Chief Justice’s order was never effected on him, he, in the exercise of his responsibility under Section 1 of the Judicial Review Act, had given instructions for the preparation of an order to operationalise the Act by way of Ministerial order, dated August 15th, which was published in the Official Gazette (Extraordinary) on August 16th.

That commencement order was to bring the Act into force on January 1st, 2019.

On August 27th, Williams rescinded that order and by a second Ministerial Order, said he “diligently sought to comply” with the Chief Justice’s order by appointing July 31st as the day on which the Judicial Review Act shall be deemed to have come into operation.

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