With a split decision from the Full Court and facing a $20M judgment against him, Vice President Bharrat Jagdeo is now hoping that the Guyana Court of Appeal would grant him special leave to appeal the effect of the Full Court’s decision.
The split decision means that the ruling of Justice Sandra Kurtzious who found that Jagdeo had defamed former government Minister Annette Ferguson and imposed the $20M default judgment against him, currently stands.
Jagdeo had first appealed Justice Kurtzious’ ruling to the Full Court in which acting Chief Justice Roxane George SC ruled that the default judgment should stand; while Justice Priya Sewnarine-Beharry’s position was that it should be vacated.
In his newest challenge seeking leave to appeal to the Guyana Court of Appeal, Jagdeo is seeking an Order that he be allowed to appeal the Full Court’s refusal to consider and grant his application to have the very Full Court appeal “remitted to three fresh Judges of the Full Court to hear and determine that appeal.”
Jagdeo (the intended appellant), has advanced that this refusal by the Full Court has deprived him of any recourse within the jurisdiction of the Full Court; while contending that the Full Court erred in law by failing to issue directions, recall their divided judgment, or 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 judgment resulting in an automatic reversion to the High Court decision.”
The Vice President is arguing that the legal effect of the divided Full Court judgment upholding the High Court decision “is erroneous” since Justice Kurtzious “erred and misdirected herself in law and in fact” when she ruled among other things that he had no real prospect of defending the claim levelled against him by Ferguson.
He continues to advance, too, that Justice Kurtzious erred by entering a default judgment against him without considering all the grounds of his draft defence, including but not limited to the defence of justification; by failing to appreciate the overriding objective of the Civil Procedure Rules in ensuring justice between both parties.
Through his battery of attorneys led by Devindra Kissoon, Jagdeo is contending that in the pursuit of his newest challenge, Ferguson (the intended respondent) would be prejudiced in no way whatsoever; since she will be afforded the opportunity to prove her claim on its substantive merits, with any costs incurred in relation to the default judgment proceedings being simply curable by way of a costs order.
Jagdeo is contending in his Notice of Motion that there are serious issues to be tried, concerning what he describes the “erroneous” application of the principles regarding setting aside a default judgment order, by, among other things, failing to give adequate weight to the real prospect of him successfully defending the claim.
On that point he said that he is likely to succeed in his appeal and should therefore be granted the reliefs sought.
There is currently an 8-week stay of execution on Justice Kurtzious’ ruling. The Full Court granted the stay following the conclusion of the matter before it on May 19th.
Justice Kurtzious had previously imposed the default judgment against Jagdeo, because he had failed to file his defence on time, in the libel suit Ferguson had brought against him; which the judge found did defame her, regarding certain statements he had made concerning her acquisition of land.
Jagdeo had filed an application seeking to set aside the judgment. Justice Kurtzious, however, had thrown out that application.
The Vice President was hoping that the Full Court would have set aside that ruling; even as he continued to seek an avenue for an opportunity to file his defence which he admitted had been out of time.
Jagdeo was also seeking an Order declaring that Part 12 of the Civil Procedure Rules (CPR)—in particular Rule 12.02—violates Article 144 (8) of the Constitution.
He had argued among other things that the judge erred in law and in fact by finding that the defences he advanced to Ferguson’s claim, had no real prospects of succeeding; and also that she misdirected herself by entering a default judgment against him, without considering all the grounds of his defence, including but not limited to that of justification.
In her ruling in June of last year, Justice Kurtzious had said that contrary to advancements made by Kissoon, Ferguson’s application for a default judgment was well within the ambit of the CPR; while noting that her attorney Lyndon Amsterdam had satisfied the requirements for the grant thereunder.
Justice Kurtzious had said she found the explanations proffered by Jagdeo for not complying with filing his defence within the 28-day time period specified by the CPR, to have been wholly “unreasonable.”
Jagdeo’s excuse had been that both he and his then-attorney Anil Nandlall were busy with preparations for General and Regional Elections at the time.
The judge had said she had also found that Jagdeo’s defence contained no real prospect of success.
On this point she had noted that the “prospect” needed not be “whimsical,” but “real.” Referencing a range of case law authorities, the judge had said, too, that it could not merely be based on an arguable defence either, but that there must be contemporaneous material, other documents and evidence substantiating the defences raised.
The judge said that finding there existed material which could have put Jagdeo on notice that the statements he uttered against Ferguson would have in fact amounted to defamation, his defences of fair comment, justification, qualified privilege and his use of the Defamation Act were all irrelevant.
She had said that he did not seek to verify the truth of what he had said about Ferguson.
In those circumstances Justice Kurtzious affirmed her earlier ruling granting Ferguson the $20 million award, stating that she stands to be prejudiced by suffering financial loss and injury to her character.
The judge then imposed $75,000 costs against Jagdeo which was also to be paid to Ferguson.
At the time, she had ordered the parties to return before her a month later for a full assessment of the quantum of damages.
Her ruling had, however, been stayed after Jagdeo filed his appeal before the Full Court.
In January of 2020, 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 sought 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.
In her separate action against the Guyana Times which is still before the courts, 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.
