Dipcon Engineering Services Limited has appealed a decision by Justice Damone Younge to set aside a default judgment handed down against Finance Minister Winston Jordan.
The appeal was made to the Full Court of the Supreme Court.
Attorney Timothy Jonas, part of Dipcon’s legal team, explained that legal action was commenced against Jordan, in his personal capacity, for misfeasance in public office. The action stemmed from Jordan’s failure to pay certain sums awarded to Dipcon.
Jordan had been given up to July 8th, 2019, by Justice Priya Sewnarine-Beharry to pay the US$2,228,400 owed to the Trinidad-based construction company, failing which he would be liable to imprisonment for 21 days. In addition, the judge imposed court costs in the sum of $3 million to be borne by Jordan. He was subsequently granted a presidential respite following the Attorney General (AG) Basil Williams’ failure to secure a stay of the judge’s order
The Civil Procedure Rules (CPR) stipulates a period by which a defendant must file a defence where proceedings have been commenced against him/her. The period varies based on the originating document filed, and the rules also stipulate that the Registry is not to accept any defence filed outside of the stipulated deadline, unless the court orders otherwise.
Therefore, when Jordan’s defence was not filed in time, he was barred, by the operation of law, from filing same without the court’s permission.
This failure to file a defence also delivered to the claimant the option of applying for a default judgment, since a claimant may apply for and obtain default judgment where a defendant fails to file a defence within a period stipulated by the rules. Pursuant to these rules, Dipcon applied for, and was granted default judgment against Jordan.
A defaulting defendant, however, may yet apply to set aside, or cancel that default judgment. To do so, he/she must, among other things, provide an explanation for the failure to file the defence. Stabroek News understands that on September 30, 2019, the State filed an application for orders to, among other things, set aside the default judgment.
This order was granted, but Jonas says it was so done in contravention of the CPR.
In determining whether to grant an order setting aside a default judgment, the CPR compels the court to consider, among other things, whether the explanation given by the defaulting defendant is reasonable, and whether the defendant has a real prospect of successfully defending the case. Case law suggests that if either of these requirements are not satisfied, a default judgment cannot be properly set aside.
Jonas argues that no reasonable explanation was offered, which is a breach of the CPR. The alleged lack of a reasonable explanation constitutes the grounds for the appeal, Jonas says.
Last Friday, October 25th, 2019, the Guyana Chronicle reported that the Court of Appeal (CoA) set aside an order for Jordan to, in his personal capacity, pay US$2.228 million to Dipcon. The CoA, however, has told this news publication that no such decision was given by that court with respect to matters involving the State and Dipcon. No such decision was made by the Full Court either. The decision referred to was that of Justice Younge.
