With the two-Judge bench in the Demerara Full Court returning a split decision on Thursday, High Court Judge Sandra Kurtzious’s ruling that granted a default libel judgement to former APNU-AFC Government Minister Annette Ferguson against Vice President Dr. Bharrat Jagdeo still stands.
Last October, Chief Justice (ag) Roxane George, SC, and High Court Judge Priya Sewnarine-Beharry, comprising the Full Court, heard arguments in an appeal filed by Dr. Jagdeo against Justice Kurtzious’s ruling, which was handed down on March 11, 2021. In her decision, the High Court Judge had found that the Vice President defamed Ferguson in statements he had made concerning her acquisition of a plot of land.
However, the Full Court was split, the Chief Justice ruled that the default judgement should not be vacated, while Justice Sewnarine-Beharry ruled that it should be vacated. In light of the divided opinion, Justice Kurtzious’s decision remains in effect.
This publication understands that Jagdeo’s legal team has intentions of further challenging the default judgement, and, as such, applied for, and was granted, an eight-week stay of execution by the Full Court.
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 the Civil Procedure Rules (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, Devinda Kissoon, 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 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 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.
Two days after the judgement was granted, the Vice President moved to the Full Court to have it set aside, along with another order dismissing Ferguson’s Statement of Claim for delay. She 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.
