Vice President Bharrat Jagdeo had filed an application to set aside a $20 million default judgement in a libel suit brought against him by former A Partnership for National Unity/Alliance For Change (APNU/AFC) Government Minister Annette Ferguson.
The matter came up for hearing today before Justice Sandra Kurtzious in the High Court. A decision is expected to be handed down on June 16.
Ferguson had filed the lawsuit in January 2020 and claimed therein that Jagdeo, who was at the time Leader of the Opposition, made defamatory 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.
Apart from an order setting aside the judgement, Jagdeo’s lawyer, Devindra Kissoon, is also asking the Court to dismiss Ferguson’s lawsuit for delay in accordance with Part 13 of the Civil Procedure Rules (CPR).
On March 11, 2021, Justice Kurtzious, pursuant to Part 12:01 (2) (d) of the CPR, rendered the default judgement after Jagdeo failed to file a defence within the required time. But Jagdeo’s lawyer is seeking to have the judgement set aside on the basis that it was “improper” and “irregular”. Kissoon argues that Ferguson has not fulfilled the requirements necessary for the grant of a default judgement.
Since Ferguson’s claim was for an unspecified sum in damages, Jagdeo argues that the Court should not have issued a default judgement sum, but rather invite his lawyers for an assessment of same.
Shortly after the filing of the lawsuit, Kissoon said that Jagdeo retained Anil Nandlall, SC, the current Attorney General, to represent his interest. The lawyer added that Nandlall drafted a defence in this matter before January 27, 2020, but owing to several reasons, the defence was not filed.
Kissoon deposes that at the time the defence was due, Nandlall was legal adviser to Jagdeo and was also a senior member of the People’s Progressive Party (PPP) who was responsible for large portions of the Party’s campaign for the March 2020 national elections.
Even after the elections concluded, Kissoon added that Nandlall continued to be extensively and exclusively engaged in matters relating to elections, including acting as lead counsel in election-related litigation, as well as matters involving a recount of votes.
“These tasks resulted in Mr Nandlall inadvertently failing to file the defence though drafted. This inadvertence was not due to neglect, but rather a combination of unusual and exceptional circumstances, which caused counsel to simply be unable to comply with the time limits established by the rules.”
Additionally, Kissoon submitted that the COVID-19 pandemic resulted in the shuttering of Nandlall’s law office for several months and the subsequent relocation of files. Because of this, the lawyer stated that Nandlall did not discover that the defence, though drafted, was not filed.
According to Kissoon, “[Jagdeo] ought not to be penalised for law office inadvertence.”
Jagdeo’s lawyer has since filed his defence in which he argues that his client has a real prospect of successfully defending the lawsuit, since the statements made by him were not defamatory and the defences of justification, fair comment, qualified privilege, and the provisions of the Defamation Act apply.
“In any event, it is clear from the facts alleged in the Statement of Claim that the comments concerned the distribution of State land and the conduct of public officials, which are matters of public interest and matters concerning the discharge of public functions, [Jagdeo], a constitutional office holder, being entitled to bring these matters to the public’s attention,” Kissoon put forward.
Taking this into consideration, he submits that Jagdeo acted “reasonably and responsibly”.
“It is noteworthy that the COVID-19 pandemic is still affecting the world, but this has not prevented [Jagdeo] from filing this application within a few days of being served with the Order of Court,” Ferguson’s lawyer, Lyndon Amsterdam has said in response to Jagdeo’s application.
According to Amsterdam, on March 23, 2020, new protocols for the filing of matters and documents in the High Court’s Registry were published in the Official Gazette, and members of the Bar were notified of same by the Guyana Bar Association.
The lawyer submitted that during the onset of the pandemic, Jagdeo’s then-lawyer, Nandlall filed several matters and documents in the High Court in response to election-related matters by making use of the protocols set out in the Official Gazette.
“The outbreak of COVID-19 in Guyana did not inhibit his active participation in these matters,” Amsterdam notes.
The lawyer contends that the elections held in 2020 were determined on August 2, 2020, and since then, more than six months have elapsed and no application has been made by the Vice President for relief from sanctions and enlargement of time to file a defence.
Ferguson submits that she was advised by her counsel and believes that inadvertence by counsel as a reason for non-compliance with rules has been frowned upon and rejected as a reason for a litigant not to comply with rules for the simple reason that all lawyers can then put forward this reason to get an extension of time to comply with rules on behalf of their clients.
The former APNU/AFC Government Minister tells the court that she will be “severely prejudiced” should Jagdeo’s application to set aside the multimillion-dollar judgement be granted.
Against this backdrop, Ferguson is not only asking the Court to dismiss Jagdeo’s application, but to urgently resolve the matter because her reputation has been tarnished by the unjustified statements he made which continue to be repeated by other members of the PPP/C.
Ferguson filed an identical lawsuit against Guyana Times, which she claimed published articles based on Jagdeo’s statements. This matter is still engaging the attention of the High Court.