Vice President Dr Bharrat Jagdeo, in his latest bid to overturn a default $20 libel judgement granted against him, has moved to the Court of Appeal of Guyana, where he is arguing that the two-Judge bench in the Full Court erred in law and in fact in failing to recall its divided judgement.
Last month, the Demerara Full Court returned a split decision in Dr Jagdeo’s appeal to overturn the default judgement handed down by High Court Justice Sandra Kurtzious in March 2021, in the libel case brought against him by former APNU-AFC Government Minister Annette Ferguson. The Full Court was split, with Chief Justice Roxane George, SC, ruling that the default judgement should not be vacated, while Justice Priya Sewnarine-Beharry ruled that it should be vacated. In light of the divided opinion, Justice Kurtzious’s decision remains in effect.
In a Notice of Motion seeking special leave to appeal the Full Court’s decision, Dr Jagdeo’s lawyers: Devindra Kissoon, Natasha Vieira and Abhimanyu Dev, contend that the Full Court erred in law by failing to recall its divided judgement and reassign the matter to a bench of the Full Court consisting of an odd number of Judges, in light of the dissenting nature of the judgement, resulting in the automatic reversion to the High Court decision.
They argue that the legal effect of the divided Full Court judgement upholding the High Court decision is erroneous, since the Chief Justice erred and misdirected herself in law and in fact by finding that their client had no real prospect of defending the claim.
According to Jagdeo’s legal team, Justice Kurtzious erred in law and in fact by entering a default judgement against him without considering all the grounds in his draft defence, including, but not limited to, the defence of justification by placing undue emphasis on Ferguson’s pleadings instead, without giving similar regard to Jagdeo’s draft defence.
They again submitted that the trial Judge erred in law by attempting to assess the evidence and conducting a mini-trial, as opposed to merely finding that Dr Jagdeo has a real prospect of success in defending the claim, overlooking and failing to assess the facts averred in his pleadings, which would be proved at the trial.
Contending that Justice Kurtzious erred in law, the lawyers argue that her finding that their client’s explanation for his failure to file the defence was not good and substantial, applying a higher standard of requiring a good explanation than the lower application standard of a reasonable explanation, which is mandated by the Civil Procedure Rules (CPR) 2016.
In asking the appellate court to grant them special leave to appeal the Full Court’s decision, Jagdeo’s Attorneys have said that Ferguson will not be prejudiced in any manner whatsoever, since she would be allowed to prove her claim on its substantive merits, with any costs incurred in relation to the default judgement proceedings being simply curable by way of a costs order.
The lawyers submitted that there are serious issues to be tried concerning the erroneous application of the principles with respect to setting aside a default judgment order by, inter alia, failing to give adequate weight to the real projects of success of their client’s appeal, and all of the circumstances within the context of the overriding objective.
Besides the motion filed with the appeal court, Jagdeo has instructed his lawyers to concurrently file with the Full Court an application for an extension of time to file a new appeal against the High Court’s decision to the Full Court, requesting that the appeal be heard by three judges. If his application to the Full Court is successful, Jagdeo has said, he would withdraw the motion before the Court of Appeal.
The default judgement was awarded against Dr. Jagdeo after he failed to file a defence within 28 days of the filing of Ferguson’s Statement of Claim, which was done sometime in January 2020. The 28-day period is prescribed under Art 12:01 (2) (d) of CPR.
In delivering her reasons for the default judgement, Justice Kurtzious also ruled that the Vice President did indeed defame the former Government Minister with his utterances.
During the Full Court hearing, Dr. Jagdeo’s lawyer had urged the panel to overturn the default judgement, arguing that Ferguson did not meet the requirements for the granting of such a judgement.
Moreover, he had contended that his client has a real prospect of defending the lawsuit, since the statements he had made were not defamatory.
This is the second time the Vice President has been unsuccessful in his attempt to overturn the default judgement. In fact, Kissoon had asked Justice Kurtzious to overturn her own judgement, but his application had been dismissed after the Judge had found that Dr. Jagdeo’s excuse for the non-filing of the defence was unreasonable, and that the statements he had made about Ferguson were certainly slanderous.
In explaining the reason for the non-filing of the defence, Kissoon had submitted that his client’s then lawyer, Attorney General Anil Nandlall, SC, had been preoccupied with the 2020 National Elections, and the constraints brought on by the COVID-19 pandemic had led to him inadvertently failing to file the defence, though it was drafted.
Before the Full Court, Ferguson’s lawyer Lyndon Amsterdam had argued that inadvertence by counsel as a reason for non-compliance with the CPR cannot be countenanced as a reason for non-compliance. If that were to be allowed, he said, all lawyers would advance such a reason as a ploy to get an extension.
According to the lawyer, the elections were concluded on August 2, 2020, and right up to the time Dr. Jagdeo was served with the judgement order in April 2021 – more than half of a year later – there was no application filed by his lawyer for relief from sanctions, nor was there any request for an extension of time to file his defence.
While Dr. Jagdeo contended that the pandemic had caused some level of constraint in the judiciary, Ferguson’s lawyer noted that the pandemic is still affecting the world, and he went on to point out that it did not affect Dr. Jagdeo from filing, within a few days of the judgment order to pay, an application to have the judgement set aside.
In the claim, Ferguson complained that Dr. Jagdeo made statements in which he questioned her acquisition of a house lot and the construction of her home at Eccles, on the East Bank of Demerara (EBD). Ferguson had submitted that the unjust statements have tarnished her reputation.
Justice Kurtzious, in her ruling, had said that although the reasons proffered by the Vice President to justify his not filing a defence were numerous, “they left the court unconvinced as to their accuracy and reasonableness.”
She had noted that the time for filing a defence began to run from January 2020, and one year later, in January 2021, no steps had been taken to cure the default; and, more so, no evidence was provided to prove same.
Kissoon’s submission that the defence of justification, fair comment, qualified privilege, and the provisions of the Defamation Act were applicable in this case was rejected by the Judge.
Having examined the statements made by the Vice President about Ferguson, Justice Kurtzious held that they were very serious allegations, as they suggested that she was corrupt and involved in misappropriation. To this end, the Judge held that as a result of Jagdeo’s statements, Ferguson stood to be prejudiced by suffering financial loss and injury to her character.
Apart from the default judgement, Dr. Jagdeo was also ordered to pay $75,000 in court costs to the former Minister.
Following her ruling, Justice Kurtzious had fixed another hearing to assess damages, having instructed the parties to file submissions on the issue. However, two days after the judgement was granted, the Vice President moved to the Full Court seeking to have the judgement set aside, along with another order dismissing Ferguson’s Statement of Claim for delay.
Ferguson was initially seeking more than $50M in damages from Dr. Jagdeo for statements he had made on December 18 and 19, 2019. She had also filed a separate claim seeking more than $10M in damages from Guyana Times newspaper, which she said had published the libellous statements the Vice President had made about her.