In what will now be his final bid to evade paying former government Minister Annette Ferguson damages for libel, Vice President (VP) Bharrat Jagdeo has now taken his challenge to the Caribbean Court of Justice (CCJ).
Before the Trinidad-based court of last resort, he maintains his argument as he did before the courts below, that the trial judge erred in entering a default judgment against him without considering all the grounds of his draft defence.
Though he acknowledges that his defence was not filed within the legal time limit, he continues to advance that both he and his then attorney Anil Nandlall, now Attorney General, were busy with preparations for General and Regional Elections at the time.
He tells the CCJ in his application, as he had all the lower courts; that because of being otherwise engaged with election matters, Nandlall “inadvertently” failed to file his defence which had already been drafted.
He also cited the onset of the COVID-19 pandemic at the time which he said added to constraints.
Through his current attorney Devindra Kissoon, Jagdeo argues that these are “reasonable explanations for the failure to timely file a defence.”
“We did not in any way intend to disregard the Court’s process, the surrounding circumstances being truly exceptional”, he said in his application before the CCJ.
The VP is arguing that having already appeared in earlier interlocutory proceedings in the matter, the trial judge “ought to have taken notice of the surrounding circumstances and exercised her discretion to require a hearing of the default judgment application and/or at the very least, order that the application be served on me or my counsel.”
He further goes on to express the view that the judge had the power to require the parties to appear before her or to participate in a conference call to deal with any matter arising in connection with the case management of the proceeding.
“I respectfully submit that I ought not to be penalised for law office inadvertence especially in light of the fact that I have a real prospect of successfully defending the claim as is outlined below,” Jagdeo says. On Monday, the Guyana Court of Appeal dismissed motions which Jagdeo had filed against an order of High Court Judge Sandra Kurtzious who had imposed a $20m default judgment on him.
The Judge had found from the pleadings that Jagdeo had defamed Ferguson. He had failed to file a defence within the time stipulated by the Civil Procedure Rules (CPR) and the default judgment was entered against him.
For the past two years, Jagdeo has been challenging Justice Kurtzious’ ruling at every level of the appellate system and has now approached Guyana’s final appellate court—the CCJ.
He is now hoping that the CCJ would find that he has leave to appeal to the Guyana Court of Appeal, or alternatively treat his application before it (the CCJ) as the hearing of the appeal itself and vacate the default judgment.
He also wants the CCJ to stay the hearing currently pending before Justice Kurtzious before whom the Court of Appeal has remitted the matter for the assessment of damages to be awarded to Ferguson.
Appeals
Jagdeo had appealed Justice Kurtzious’ ruling to the Full Court which had delivered a split decision.
As a result, the Vice President (VP) 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, Jagdeo also moved to the Court of Appeal seeking special leave to challenge the split decision.
Both Chief Justice (ag) Roxane George SC and Justice Priya Sewnarine-Beharry who heard the Full Court appeal 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.
Following the Guyana Court of Appeal’s ruling on Monday, Ferguson’s attorney Lyndon Amsterdam, in a press release said that the appellate court relied on Section 79 of the High Court Act and Sections 6(1)(2) of its own Act to find that it lacked the jurisdiction to grant special leave.
He said in the release that this was underscored against the background of the Full Court refusing to give permission for a fresh appeal to the Full Court where three instead of two judges would hear the appeal.
Background
Jagdeo’s contention had 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 CPR in ensuring justice between both parties.
Justice Kurtzious had 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.
In her ruling, Justice Kurtzious had said that contrary to advancements made by Kissoon on behalf of Jagdeo, Ferguson’s application for a default judgment was well within the ambit of the CPR; while noting that her attorney 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.”
