Attorney-at-Law Arudranauth Gosai has indicated his intention of filing an appeal against a judgment by Justice Navindra Singh in which he dismissed a $50 million lawsuit filed by Senior Magistrate Alex Moore against Director of Public Prosecutions (DPP) Senior Counsel Shalimar Ali-Hack.
Gosai has deemed the judgment handed down on December 2, 2020, as “patently incorrect.”
In July 2020, Magistrate Moore instituted a claim for the tort of defamation against Ali-Hack. Moore, who has been a sitting Magistrate for nine years, alleged that he was defamed in a letter authored by the DPP dated December 5, 2019.
The letter was titled “Re: Conduct of Magistrate Alex Moore in the charge of the Police vs Marcus Bisram for the offence of murder, contrary to Common Law”.
Magistrate Moore claimed that the letter was falsely and maliciously written by the DPP and sent to acting Chancellor of the Judiciary Yonette Cummings-Edwards and acting Chief Justice Roxane George.
He said that the letter suggested that he was not acting impartially in the matter, and, was, therefore unfit to sit as a Magistrate in the Preliminary Inquiry (PI) proceedings at the Whim Magistrate’s Court.
Magistrate Moore, in court documents, noted that the contents of the letter have greatly injured his character, credibility, and reputation.
He further noted that it has subjected him to public ridicule, causing him to suffer mental anguish, distress, and depression.
In August 2020, the DPP asked the court to dismiss the lawsuit on the ground that it disclosed no reasonable reason for bringing the claim. Ali-Hack, through Senior Counsel Robin Stoby, Senior Counsel Jamela Ali and former Solicitor General Kim Kyte-Thomas, argued that the case was scandalous, frivolous, vexatious, an abuse of the court process, and seeks to obstruct the just disposal of the proceedings.
In arguing for the lawsuit to be struck out, Ali-Hack’s lawyer submitted that the letter at hand refers to her acting in her professional capacity as Director of Public Prosecutions and did not constitute or display nor intend any malice against Magistrate Moore.
The lawyers, therefore, contended that Magistrate Moore suing the DPP in her personal capacity “is, therefore, a colourable device, to seek to escape the effects substantially and procedurally suing [her personally] instead of in her office as Director of Public Prosecutions”.
“The said office of the Director of Public Prosecutions is an independent constitutional office of the State as recognised under Articles 116 and 187 of the Constitution for which [she] would be patently entitled to the protection of Sections 8 and 4 of the Justice Protection Act, and the benefits of the operation of Section 3(4) of the State Liability and Proceedings Act,” the DPP’s attorney submitted.
The lawyer is of the belief that her client’s letter was addressed to the acting Chancellor of the Judiciary in her official capacity as according to Section 12 of the Summary Jurisdiction (Magistrate) Act, requesting the removal of Magistrate Moore from the PI into the murder charge against Bisram following a report by State Prosecutor Stacy Gooding.
The lawyers further submitted that the Chancellor, who was also Chairperson of the Judicial Service Commission (JSC), was entitled to investigate the allegation contained in the letter against Magistrate Moore, in his professional responsibility.
Moreover, the DPP contended that Magistrate Moore’s case is contrary to public policy by seeking through defamatory claims to intimidate or prevent the process of complaints against the conduct of Magistrates, and particularly concerning disciplinary considerations by members of the JSC of the actions of any member of the Magistracy, including him.
In his judgment, Justice Singh upheld the DPP’s argument that the claim brought by Magistrate Moore was scandalous, frivolous, vexatious, an abuse of the court process, seeks to obstruct the just disposal of the proceedings, and disclosed no reasonable reason for bringing the claim.
In dismissing the lawsuit, Justice Singh held that Magistrate Moore accepted that Ali-Hack was acting in her capacity as DPP when she penned the letter. Justice Singh noted that the provisions of Articles 116 and 232 of the Constitution establish that the DPP is a public officer.
By bringing the claim in her personal capacity, Justice Singh noted that Magistrate Moore improperly named Ali-Hack as a party to the proceedings since her office is protected under the State Liability and Proceeding Act and the Justice Protection Act, with respect to the execution of its functions.
According to Justice Singh, the lawsuit was in breach of Section 8 (1) of the Justice Protection Act as it was instituted more than seven months after Magistrate Moore became aware of the letter. The Judge also held that the claim was also in breach of Section 8 (2) of the Justice Protection Act since Magistrate Moore failed to give the DPP notice in writing of his intention to institute the claim.
The Judge noted that when Ali-Hack wrote the letter to the Chancellor and Chief Justice, also in their official capacity, she was acting in her official capacity as Director of Public Prosecutions, seeking to invoke Section 12 of the Summary Jurisdiction (Magistrate) Act.
The High Court Judge disagreed with Magistrate Moore’s contention that the determination of whether the letter is subject to absolute privilege is a matter of fact that can only be determined at trial. Magistrate Moore was ordered to pay the DPP $200,000 in court costs on or before December 24, 2020.
