Defence against $20M lawsuit was prepared within time frame – Nandlall
… says clerical error resulted in not being filed
In the wake of the recent libel damages judgement granted against now Vice President Bharrat Jagdeo, his lawyer at the time Attorney General Anil Nandlall has clarified that a defence was personally prepared by him but was not filed due to clerical errors beyond his control.
In a statement on his social media account, Nandlall noted that an “unfortunate but devious” spin has been put by sections of society on the Application and Affidavit that has since been filed to set aside the judgement granted in favour of former Minister Annette Ferguson. The AG provided clarity in his statement.
“I wish to make it abundantly clear that both Mr Jagdeo and I gave (Attorney-at-Law) Mr Devindra Kissoon the instructions which were utilised in the preparation of those documents and those documents were read and approved by me,” the Senior Counsel said in his statement.
“I reiterate that the defence was prepared by me within the time prescribed but unfortunately, was not filed. I have already outlined the facts and circumstances which led to the same. Two weeks prior to the March 2 elections, I took complete leave from my law office and only made court appearances when my absence was unavoidable.”
He also explained the process when lawyers prepare legal documents. According to him, it was his clerical staff who were supposed to file the prepared Affidavit of Defence. This was, however, not done and Nandlall was himself under the mistaken impression that it had been filed.
“Lastly, while lawyers prepare legal documents, the filing is done by their clerical staff. Clear instructions were given to my staff to file the prepared defence. In error, I assumed that it was done and I so communicated to Mr Jagdeo. I hope I have provided due clarity to those who have authored and are fueling the skewed narrative,” Nandlall said.
Jagdeo, through Attorney-at-Law Devindra Kissoon, has since applied to the High Court asking for an interim order staying the enforcement of a $20 million default judgement awarded against him to former A Partnership for National Unity/Alliance For Change (APNU/AFC) Government Minister Annette Ferguson, who filed a libel suit against him in January 2020.
The application has been made before the very Judge who ruled in Ferguson’s favour, Justice Sandra Kurtzious. In court documents seen by Guyana Times, Jagdeo is also asking for an order setting aside the judgement and another order dismissing Ferguson’s lawsuit.
On March 11, 2021, Justice Kurtzious pursuant to Part 12:01 (2) (d) of the Civil Procedure Rules (CPR) of the Supreme Court of Judicature rendered the default judgement after Jagdeo failed to file a defence within the required time.
Given that the lawsuit was filed in January 2020, and that no action was taken by Ferguson until February 24, 2021, when she applied for a default judgement, Jagdeo, through his lawyer, Devindra Kissoon, contended that the case should have been dismissed for delay in accordance with Part 13 of the High Court rules. Moreover, he argued that his lawyers were not informed that Ferguson had applied for such a judgement.
As a result, Jagdeo argued that the order for a default issued by Justice Kurtzious is improper and irregular. “For this reason alone, it is respectfully submitted that the [judgement] Order be set aside and the Statement of Claim dismissed. [Ferguson] has not fulfilled the requirements necessary for the grant of a default judgement,” Jagdeo’s counsel argued.
According to Kissoon, Ferguson failed to inform the court that she filed identical proceedings against Guyana Times arising out of the same comments made by his client. In the statements, Jagdeo allegedly questioned her acquisition of land and the construction of her home.
Since Ferguson’s claim was for an unspecified sum in damages, Jagdeo through his lawyer argued that the court should not have issued a default judgement sum, but rather invite his lawyers for an assessment of same.
Kissoon deposed that at the time the defence was due, Nandlall was legal adviser to Jagdeo, who was at the time Leader of the Opposition, and was also a senior member of the People’s Progressive Party (PPP) who was responsible for large portions of the Party’s campaign for the March 2020 General and Regional Elections.
Even after the elections concluded, Kissoon added that Nandlall continued to be extensively and exclusively engaged in matters relating to elections, including acting as lead counsel in elections-related litigation, as well as matters involving a recount of votes.
“These tasks resulted in Mr Nandlall inadvertently failing to file the defence though drafted. This inadvertence was not due to neglect, but rather a combination of unusual and exceptional circumstances, which caused counsel to simply be unable to comply with the time limits established by the rules.”
Additionally, Kissoon submitted that the COVID-19 pandemic resulted in the shuttering of Nandlall’s law office for several months and the subsequent relocation of files. Because of this, the lawyer stated that Nandlall did not discover that the defence, though drafted, was not filed. According to Kissoon, “[Jagdeo] ought not to be penalised for law office inadvertence.”
Given the length and complexity of the issues in the matter, the sum of damages claimed by Ferguson, the overriding objective of the CPR and the interests of justice, assuming the Statement of Claim is not dismissed, Jagdeo’s lawyer contended that it would be prejudicial to deny him an opportunity to be heard by serving and filing his defence given that he has already been sanctioned by the court.
Kissoon has told the court that his client’s application is urgent, since the judgement has been entered and Ferguson may seek to enforce the judgement at any time, which warrants an immediate stay being granted.