On April 27th, the Full Court will rule on the appeal filed by former President David Granger, who is challenging Justice Navindra Singh’s waiver of a pre-trial review (PTR) in a libel suit he filed against a number of media houses.
At the hearing yesterday, the Court raised questions surrounding “judge/forum shopping,” which it pointedly sought to remind is not allowed in Guyana’s law.
Back in April of last year, Granger, through his attorney Roysdale Forde SC, wrote a letter to Justice Singh voicing his displeasure with the Judge conducting a pre-trial review (PTR) and also presiding over the trial of his $2.6 billion libel suit.
When the matter came up for hearing yesterday afternoon, Justices Damone Younge and Gino Persaud who are presiding over the appeal, granted Granger’s request for an order staying Justice Singh from proceeding to conduct the trial which he had set for February 13th and 14th.
In his appeal, Granger describes the Judge’s decision to waive the PTR, as being “unreasonable and irrational,” made “at his [the Judge’s] own initiative” and “without a proper consideration…of the overriding objectives of the Civil Procedure Rules (CPR).
At the hearing yesterday, Forde reiterated his client’s contention stated in the appeal, that Justice Singh erred when he made the determination that the matters which were intended to be conducted at the PTR were trial issues; and that the decision to conduct matters which ought to have been conducted at the PTR, were inconsistent with the provisions of the CPR.
The Judge had pointed out that a PTR is really concerned with issues surrounding potential settlement and case management protocols, but that what had been identified as PTR issues in the claim, were really evidentiary issues which are properly to be resolved at trial.
Noting that Part 25:04 (4) of the CPR falls under the provisions dealing with the Case Management Conference (CMC) (Fixing and Variation of Timelines) at the first Case Management Conference and Part 25:03 – Case Management Conference; Forde said that Justice Singh at that first CMC made a determination that it was necessary that there be a PTR.
He then submitted that with the CMC having then been ended, the PTR stage had commenced; while advancing that upon a proper construction of Part 38 (5) of the CPR, it reveals the fundamental position that the pre-trial Judge is not to be the case management Judge or the presiding Judge at the trial.
Forde argues that in breach of the Rules, Justice Singh made two determinations without the consent of the parties: (1) that he will be the PTR Judge and (2) that he will also be the trial Judge.
The lawyer then went on to argue that the Judge’s statement that the issues to be determined at Pre-Trial Review were “trial issues;” are matters for the determination of the utility of the PTR and not as to whether it was impracticable for him not to be the Case Management Judge and the Pre-Trial Review Judge.
Referencing the case file and the sequence of the hearings before Justice Singh, Justice Persaud enquired from Forde whether his client was not in fact seeking to advance that he simply did not want Justice Singh to hear the case.
On this point Justice Persaud was keen to point out that the law in Guyana does not allow for a litigant to “judge” or “forum,” shop.
Attorney Kashir Khan—who represents one of the defendants in the matter—echoed Justice Persaud’s sentiments, noting that that the dangers associated therewith are obvious.
His contention also, was that what the Court had before it was not even a process for PTR as it did not meet the threshold to be so qualified; but was rather at all times just a CMC. He said, too, that Granger’s objection came outside of the statutory required period.
According to him, there is no prospect of any settlement being arrived at between the parties, neither the narrowing of issues; which are all considerations needed for a PTR.
In response, Forde remained adamant that Granger was not attempting to judge-shop nor as Khan contends, was the Court conducting a CMC, but rather a PTR.
Following the hearing, Justice Younge said that she and Justice Persaud will consider the arguments and will deliver their ruling on April 27th.
Background
Granger in his notice of appeal is arguing, however, that despite his letter to the Judge that he was “not consenting” as required by Part 38:01 (5) of the CPR to him conducting the PTR and the trial, the Judge nonetheless exercised his discretion “in a manner inconsistent” with the CPR by waiving the PTR.
Part 38:01 (1) of the CPR states that a “Pre-Trial Review is intended to encourage a settlement prior to trial, assist in identifying or narrowing the actual issues for trial, and deal with any outstanding issues before trial, and no further Case Management Conferences must be held after a Pre-Trial Review unless the Court orders otherwise.”
Subsection (5) of Part 38 then goes on to state, “The Judge who conducts the Pre-Trial Review must not, where practicable, be the Case Management Judge or preside at the trial, unless the parties agree and file a Consent (Form 10B) to the same effect.”
The succeeding subsection then goes on to provide for the waiver. It states, “The Court may at any time, on its own initiative or upon application, direct that a Pre-Trial Review be waived or another Pre-Trial Review be held.”
Granger is contending that the Judge made the decision he did to waive the PTR, “on his own initiative.”
He has filed a $2.6 billion lawsuit against dailies—Stabroek News, Kaieteur News and the Guyana Times, which he says have all besmirched his character through letters published by communications specialist Christopher ‘Kit’ Nascimento.
In his action, Granger said that Nascimento accuses him of attempting to defy the will of the people in the March 2nd, 2020 Elections.
The former president has said that the statements, which he described as libellous by Nascimento, were published by the Guyana Times on May 23rd of 2020, both in its print and online versions.
He is seeking in excess of $100 million jointly and severally against the Guyana Times and its Editor-in-Chief Tusika Martin.
He then seeks damages in excess of $50 million against Nascimento whom he said also libeled him on June 5th, 2020, through the online news platform INEWS.
Against the Kaieteur News, Granger is asking for damages in excess of $100 million jointly and severally against owner/publisher of the newspaper, Glenn Lall and its Editor-in-Chief Sharmain Grainger.
The Claimant deposes in his statement of claim that Nascimento on June 5th of 2020, libeled him through a certain publication by the Kaieteur News in its print and online editions.
Against the Stabroek News, the former president is seeking damages in excess of $100 million jointly and severally also, against the newspaper and its Editor-in-Chief Anand Persaud, which he said published letters written by Nascimento.
Granger said that on June 20th of 2020, the Stabroek News published a letter in its newspaper and on its website, written by Nascimento, titled `David Granger is without shame in continuing to defy the will of the people.’
In his 135-page suit, Granger goes on to reference a host of other letters published by the dailies in which he said Nascimento continued to libel him.
Altogether, the former president’s suit against Nascimento and the three newspapers is pegged at some $2.6 billion.
Through his attorney, the former president said that he never “encouraged and or supported efforts to move to the Courts inclusive of the Court of Appeal to deny the Chairman (of the Guyana Elections Commission-GECOM) of her authority to produce the elections results;” nor did he attempt to “remain in office as President to rule without any regard or care regardless of the consequences to the country.”
Among other things, the Claimant also denies that he has ever “used invented irregularities to claim a victory for himself as President and the APNU+AFC at the” election; or that he knew after the elections “that a majority of just under 16,000 Guyanese voted to elect the PPP/C,” from published Statements of Poll in the possession of his party.
