Vice President Bharrat Jagdeo has been unsuccessful in his application to set aside the $20M default judgment he had been ordered to pay former government minister Annette Ferguson who had sued him for libel.
In a ruling yesterday afternoon, Justice Sandra Kurtzious upheld her earlier ruling granting Ferguson judgment in default of Jagdeo’s failure to file his defence on time, in the suit she had brought against him.
In addition to the $20 million sum, Jagdeo has incurred an additional debt of $75,000 in court costs which he now also has to pay over to Ferguson.
The judge noted that contrary to advancements made by attorney Devindra Kissoon who represented Jagdeo, Ferguson’s application for a default judgment was well within the ambit of the Civil Procedure Rules (CPR).
The judge said that Ferguson, through her attorney Lyndon Amsterdam, had satisfied the requirements for the grant in accordance with the Rules, which afforded her the award sought.
Justice Kurtzious said she found on the first issue to be addressed, that the explanations proffered by Jagdeo for not complying with filing his defence within the 28-day time period specified by the CPR, to have been wholly “unreasonable.”
She said that the excuse of the former Leader of the Opposition’s ex-attorney Anil Nandlall SC, that he did not file his client’s defence in time because they were preoccupied with elections preparation at the time, did not qualify to fall into the bracket of “unusual circumstances. ”
She said, too, that their claim of the COVID-19 pandemic shuttering the courts could also not be advanced as an excuse with any merit, as this was simply not the case. She pointed to the court’s practice directions which had been gazetted to make the point that the filing services had always been provided by the courts—both in person and through the use of the court’s drop-box and also virtually.
The judge said that at no time were those services halted; while pointing out that even though Jagdeo and his lawyer advanced that the court was closed, they deposed being preoccupied with elections business, which in large part constituted litigation associated with those polls, which were being heard by the courts.
The courts being closed was far from the truth the judge said, even as she questioned a claim made by Nandlall that while he had prepared Jagdeo’s defence within time, he inadvertently did not file it for all the reasons proffered.
Against that background she said that the explanations which Jagdeo and his lawyer sought to give were unfounded, unsubstantiated and unreasonable and which ultimately were unable to move the Court.
Having realized that they were at fault and outside of the timeline, Justice Kurtzious said that neither Jagdeo’s former or current attorney made efforts to remedy the default, while also noting that they had produced no material to so prove.
She said that even after the five-month elections impasse and contentions had been resolved, a full additional eight months would elapse during which again no defence had been filed.
The judge said that there must be proper evidence before the court explaining the delay. Referencing case law authorities, Justice Kurtzious noted that the pressure or workload of an attorney is never a good reason for delay.
In all the circumstances, she said that Jagdeo failed to convince the court that his reasons for non-compliance were reasonable.
On the second issue which Justice Kurtzious said was examined, she said she found that Ferguson’s application for the default judgement had been in accordance with the CPR.
She noted that contrary to Jagdeo’s and his attorney’s arguments, a party seeking to enforce a default judgment is under absolutely no obligation to notify the party against whom the judgment is being sought, about their intention.
She said that there is no law which so requires, while noting that in the extant case, prudence and due-diligence ought to have dictated that Jagdeo and his attorney keep themselves aware of the status of the action against him.
On this point, she said that they had failed to illustrate that Ferguson’s application for the award violated any law.
The third and final issue dealt with by the court was whether Jagdeo’s defence contained any real prospect of success.
To this, Justice Kurtzious said that the “prospect” must not be “whimsical,” but “real.” Referencing a range of case law authorities, the judge said, too, that it cannot merely be based on an arguable defence either, but that there must be contemporaneous material, other documents and evidence substantiating the defences raised.
The judge said that finding there existed material which could have put Jagdeo on notice that the statements he uttered against Ferguson would have in fact amounted to defamation, his defences of fair comment, justification, qualified privilege and his use of the Defamation Act were all irrelevant.
She said that he did not seek to verify the truth of what he had said about Ferguson.
In concluding, Justice Kurtzious described Jagdeo’s delay as being exceedingly inordinate and his excuses as being unreasonable, while stating that she also found a “protracted disregard” for the Rules.
Further to that, given his failure to illustrate that his case had any real prospect of success, she dismissed his application seeking to set aside the default judgment.
In those circumstances the judge affirmed her earlier ruling granting Ferguson the $20 million award, stating that she stands to be prejudiced by suffering financial loss and injury to her character.
The $75,000 court cost was then also imposed against Jagdeo.
The parties will return to court on July 28th for an assessment of the quantum of damages.
Two days after Justice Kurtzious granted Ferguson judgment back in March, Jagdeo filed an application seeking to set it aside along with an order dismissing her “Statement of Claim for delay.”
Kissoon had argued that his client was unaware of the default judgment, and held the position that the failure for the defence being submitted on time, was due in part to Jagdeo’s preparations for the March 2nd, 2020 General Elections and limitations of the COVID-19 pandemic.
His contention was that the judgment was irregular and went against the provisions of the CPR; while describing the “excuses” proffered by his client as being “reasonable,” and his defence “proper.”
Amsterdam, however, argued on his client’s behalf, that the excuses proffered by Jagdeo were poor, and that his defence had no merit or real prospect of success.
He had said, too, that the ruling on the default judgment was sound and in accordance with the CPR.
In January of last year, Ferguson filed a $60M lawsuit against Jagdeo—the then Opposition Leader and the Guyana Times newspaper, over what she said were libelous statements made by the two, calculated to damage her character and reputation.
In her suit against Jagdeo, Ferguson sought damages in excess of $50,000,000 for libel she said he committed on two separate occasions—December 5th and 12th of 2019 for which she was asking for more than $25M in damages for each occasion.
In her separate action against the Guyana Times which is still before the courts, the former minister is seeking damages in excess of $10M against the news entity which she said had published the alleged libelous statements made against her by Jagdeo.
Ferguson had alleged that Jagdeo had made what she said were untrue statements regarding her acquisition of land.
