Former government minister Annette Ferguson has responded to the application filed by Vice President Bharrat Jagdeo, who is seeking to set aside a $20M default judgment he has been ordered to pay her in a libel action she brought against him.
In her affidavit in reply, Ferguson slammed Jagdeo’s explanation of his lawyer being preoccupied with general elections and the constraints brought on by the COVID-19 pandemic, as mere excuses for not complying with the timeline in which he needed to file his defence to her action.
In January of last year, Ferguson filed a $60M lawsuit against Jagdeo—the then Opposition Leader and the Guyana Times newspaper, over what she said were libelous statements made by the two, calculated to damage her character and reputation.
In her suit against Jagdeo, Ferguson was seeking damages in excess of $50,000,000 for libel she said he committed on two separate occasions—December 5th and 12th of 2019 for which she was asking for more than $25M in damages for each occasion.
On March 11th, Justice Sandra Kurtzious granted Ferguson (the Claimant) a judgment ‘in default of defence’ after Jagdeo (the Defendant) failed to file his defence within the 28-day time period specified in accordance with the Civil Procedure Rules (CPR).
Two days after being served with the order, Jagdeo filed an urgent application seeking to set the default judgment aside and an order dismissing Ferguson’s “Statement of Claim for delay.”
Following service on March 30th, his former lawyer—now Attorney General Anil Nandlall SC, had issued a statement saying on the one hand that he was unaware of the default judgment, but on the other, attributing his failure to submit his client’s defence on time, to his preparations for the March 2nd, 2020 General Elections and limitations of the COVID-19 pandemic.
In her responding affidavit, however, Ferguson argues that inadvertence by counsel as a reason for non-compliance with rules cannot be countenanced as a reason for non-compliance. She reasoned that if this were to be allowed, then all attorneys would advance such reasons as a ploy to get an extension of time.
Meanwhile, regarding the pandemic, Ferguson said that it is still affecting the world, but was keen on pointing out that it did not prevent Jagdeo from filing his “application to set-aside” within a few days of being served with the judgment order to pay.
Jagdeo had blamed his lawyer’s non-compliance with the timeline on election tasks. According to him, though drafted, Nandlall inadvertently failed to file the defence, which he credited to his preoccupation with elections preparation.
He had said, too, that the pandemic resulted in the closure of Nandlall’s office for several months in 2020 which warranted the relocation of files. According to him, it was not until the removal of files that Nandlall discovered the defence, though drafted, had not been filed.
Jagdeo and his lawyer had contended, too, that the judgment was granted without their knowledge. Ferguson, however, had said that this was furthest from the truth; but pointed out that in accordance with Part 12:2 of the CPR there is no requirement for notice to be given to either the defendant or his lawyer.
Ferguson said that while Jagdeo cites election preparations as a reason for his lawyer’s non-compliance with the Rules, the elections had been determined on August 2nd, 2020 and right up to the time he was served with the order last month—more than half a year after, there had been no application from him or his lawyer for relief from sanctions or any request for an extension of time to file his defence.
Ferguson said that Jagdeo seems to want to use the Rules conveniently. She said he contends on the one hand that the elections and pandemic created unusual and extenuating circumstances in the court system for which he does not want the strict application of the Rules, “but when it is convenient to” him, reliance is placed on the Rules.
As an alternative to having Justice Kurtzious’ order set aside, Jagdeo is asking for an order allowing him to file his defence within seven days of the granting of his application, and extending the relevant case management timelines to allow him to “properly defend the claim.”
Ferguson argues through her attorney Lyndon Amsterdam, however, that Part 3.3 (3) of the Rules forbids a court from granting an order extending or abridging time unless an application for extension or abridgment of time before the expiration of the time prescribed; except where there are circumstances making it impractical to do so.
“The main reason for the non-filing of a defence on behalf of the defendant was due to the inadvertence of his counsel,” Ferguson said.
She then goes on to contend that Jagdeo has failed to show that he has a defence “which has a real prospect of succeeding.”
In her decision, Justice Kurtzious noted that the default judgment was being made against Jagdeo in accordance with Part 12:01 (2) (d) of the CPR. The cause she noted, is Jagdeo’s failure to file his defence within the time required.
The judge had also imposed $75,000 court costs against Jagdeo which he has to pay to Ferguson as well.
In the action against the Guyana Times, the former Minister is seeking damages in excess of $10M against the news entity which she said had published the alleged libelous statements made against her by Jagdeo.
Ferguson had alleged that Jagdeo had made what she said were untrue statements regarding her acquisition of land.
In an interview with this newspaper last year following one of the hearings, Amsterdam had said that he had submitted to the court all relevant documents substantiating that his client owned a single property on only one plot of land, and not three house lots as was disseminated by the defendants.
He had said, too, that contrary to statements made suggesting that his client suddenly came into wealth after becoming a government minister in 2015, her financial records of income have been submitted to the court substantiating her income way before 2015.
The lawyer had said that in fact, his client had been able to secure a bank loan which she used to acquire the only house she owns at Eccles, East Bank Demerara for which she has legally been given title.
