With a $20M judgment and court costs in the sum of $75,000 currently against him for defaming former government Minister Annette Ferguson, Vice President Bharrat Jagdeo has incurred an additional $75,000 debt to Ferguson, after losing his bid to set aside the initial sums awarded to her.
The initial judgment award had been made in June of last year by High Court Judge Sandra Kurtzious who found that Jagdeo had defamed Ferguson.
He appealed Justice Kurtzious’ ruling to the Full Court which in May delivered a split decision with acting Chief Justice Roxane George SC ruling that the default judgment should stand; while Justice Priya Sewnarine-Beharry’s position was that it should be vacated.
As a result, the Vice President then sought an order from the very Full Court to have his appeal of its decision be remitted to three fresh Judges of the Full Court to hear and determine that appeal.
While that application was pending before the Chief Justice (CJ) and Justice Sewnarine-Beharry, Jagdeo also moved to the Court of Appeal with an intended appeal to challenge the split decision.
Stabroek News understands that in a ruling delivered yesterday, the CJ and Justice Sewnarine-Beharry refused Jagdeo’s application on the basis that Section 77 of the High Court Act—gives only to the Chief Justice—the power to appoint three judges instead of two to hear an appeal to the Full Court.
Section 77 states, “When the Full Court is composed of two judges, if any party to an appeal in any cause or matter makes application to the Chief Justice, and the Chief Justice is of the opinion that for any special grounds the Full Court should be composed to three judges on the hearing of the appeal, he may assign a third judge to sit on the hearing by the Full Court of such appeal.”
Referencing the application filed before the Court of Appeal, the CJ and Justice Sewnarine-Beharry are said to have ruled further, that a simultaneous application meant that a higher court was seized with jurisdiction to hear the matter and that Jagdeo could not have two similar applications before two different courts.
In the circumstances, the Judges refused Jagdeo’s application and ordered him to pay costs to Ferguson in the sum of $75,000.
Jagdeo’s case before the Court of Appeal now has to await its turn in the queue for hearing.
Jagdeo’s contention has been that Justice Kurtzious erred by entering a default judgment against him without considering all the grounds of his draft defence, including but not limited to the defence of justification; by failing to appreciate the overriding objective of the Civil Procedure Rules in ensuring justice between both parties.
Through his battery of attorneyas led by Devindra Kissoon, Jagdeo contends that Ferguson would be prejudiced in no way whatsoever; since she will be afforded the opportunity to prove her claim on its substantive merits, with any costs incurred in relation to the default judgment proceedings being simply curable by way of a costs order.
Jagdeo is contending in his Notice of Motion that there are serious issues to be tried, concerning what he describes as the “erroneous” application of the principles regarding setting aside a default judgment order, by, among other things, failing to give adequate weight to the real prospect of him successfully defending the claim.
Jagdeo had been granted an 8-week stay of execution on Justice Kurtzious’ ruling. That stay expires today.
Justice Kurtzious had previously imposed the default judgment against Jagdeo, because he had failed to file his defence on time, in the libel suit Ferguson had brought against him; which the Judge found did defame her, regarding certain statements he had made concerning her acquisition of land.
Jagdeo had filed an application seeking to set aside the judgment. Justice Kurtzious, however, had thrown out that application.
The Vice President was hoping that the Full Court would have set aside that ruling; even as he continued to seek an avenue for an opportunity to file his defence which he admitted had been out of time.
Jagdeo was also seeking an Order declaring that Part 12 of the Civil Procedure Rules (CPR)—in particular Rule 12.02—violates Article 144 (8) of the Constitution.
He had argued among other things that the Judge erred in law and in fact by finding that the defences he advanced to Ferguson’s claim, had no real prospects of succeeding; and also that she misdirected herself by entering a default judgment against him, without considering all the grounds of his defence, including but not limited to that of justification.
In her ruling, Justice Kurtzious had said that contrary to advancements made by Kissoon, Ferguson’s application for a default judgment was well within the ambit of the CPR; while noting that her attorney Lyndon Amsterdam had satisfied the requirements for the grant thereunder.
Justice Kurtzious had said she found 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.”
Jagdeo’s excuse had been that both he and his then-attorney Anil Nandlall were busy with preparations for General and Regional Elections at the time.
The judge had said she had also found that Jagdeo’s defence contained no real prospect of success.
On this point she had noted that the “prospect” needed not be “whimsical,” but “real.” Referencing a range of case law authorities, the judge had said, too, that it could not 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 had said that he did not seek to verify the truth of what he had said about Ferguson.
In those circumstances Justice Kurtzious 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 judge then imposed $75,000 costs against Jagdeo which was also to be paid to Ferguson.
At the time, she had ordered the parties to return before her a month later for a full assessment of the quantum of damages.
Her ruling had, however, been stayed after Jagdeo filed his appeal before the Full Court.
In January of 2020, 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.
