Jagdeo/Ferguson defamation case: Full Court suspends damages assessment hearing

…to hear appeal to set aside default judgment on Oct 14

Vice President Bharrat Jagdeo’s bid to set aside a default judgement made against him by High Court Judge Sandra Kurtzious, in a defamation suit mounted against him by former APNU/AFC Government Minister Annette Ferguson, comes up for hearing on October 14 before the Demerara Full Court.

In the interim, the Full Court, comprising Chief Justice Roxane George and Justice Priya Sewnarine-Beharry, has granted a stay of execution – an order temporarily suspending an assessment of damages hearing that had been fixed for last month by Justice Kurtzious, who was scheduled to make her ruling on July 28.
Ferguson, who filed the lawsuit in January 2020, had claimed therein that Jagdeo had made defamatory statements in which he questioned her acquisition of a house lot and the construction of her home at Eccles, on the East Bank of Demerara. The former Government Minister has complained that the unjustified statements have tarnished her reputation.
On June 16, Justice Kurtzious upheld her previous judgement that was rendered on March 11, and in so doing, dismissed Jagdeo’s application to have it set aside. At that time, Justice Kurtzious had recalled her previous award for damages, which was set at $20 million, and had fixed the later date for an assessment of the quantum of damages.

Moreover, Justice Kurtzious had gone on to determine the case on its merits, and, in upholding the judgement, had found that as a result of Jagdeo’s slanderous statements, Ferguson stood to be prejudiced by suffering financial loss and injury to her character.
The default judgement was entered against Jagdeo after he had failed to file a defence within the 28 days prescribed under Art 12:01 (2) (d) of the Civil Procedure Rules (CPR).
Shortly after the judgment was rendered, Jagdeo, through his lawyer Devindra Kissoon, had moved to have it set aside; and, among other things, had contended that his failure to file a defence could be justified.
The Vice President has argued that Ferguson did not meet the requirements for such a judgement, and that he had real prospects in defending the claim.
Hoping that Justice Kurtzious would have overturned her own judgement, Kissoon had said that his client’s former lawyer, Anil Nandlall, SC, the current Attorney General, had drafted a defence before January 27, 2020, but, owing to several reasons, it was not filed.
Kissoon had submitted that Nandlall was preoccupied, having been responsible for a large part of the PPP/C’s campaign for the March 2020 national elections, and had been extensively and exclusively engaged in matters relating to elections, including acting as lead counsel for Jagdeo – who was at the time Opposition Leader – in election-related litigation as well as matters involving a recount of votes.
“These tasks resulted in Mr. Nandlall inadvertently failing to file the defence, though it was 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.”
Although the reasons for the non-filing of a defence proffered by Jagdeo were numerous, Justice Kurtzious had held, “They left the court unconvinced as to their accuracy and reasonableness.” According to her, the time for the filing of a defence began to run from January 2020, and one year later, in January 2021, no steps had been taken to cure the default, and more so, no evidence was provided to prove same.
Additionally, Kissoon had stated that the COVID-19 pandemic had resulted in the shuttering of Nandlall’s law office for several months, and files had subsequently been relocated. Because of this, the lawyer stated, Nandlall did not discover that the defence, though drafted, was not filed.
Addressing this, Justice Kurtzious had said, “[Jagdeo’s] claim that his counsel’s chambers were shuttered cannot be a true representation of the situation that existed when other explanations are examined.” The Judge had then queried, “How could his (Nandlall’s) office be shuttered for several months when, as stated by (Jagdeo), counsel was constantly in court representing [his] interest in [his] capacity as Leader of the Opposition?”
According to the High Court Judge, Jagdeo’s claim that his failure to file a defence was as a result of the courts not sitting for most of 2020 “is incorrect, to say the least.” She had added, “The court was never closed totally to the public…” In doing so, she outlined the COVID-19 practice directions issued by the Judiciary, which were decimated by the Bar Association.
In his application seeking to overturn the default judgement, Jagdeo had also filed a defence in which he argued that he had a real prospect of defending the lawsuit, since the statements he had made about the former APNU/AFC Government Minister were not defamatory.
Jagdeo’s lawyer had submitted that the defence of justification, fair comment, qualified privilege, and the provisions of the Defamation Act apply in this case. As such, the lawyer had submitted that his client acted reasonably and responsibly as a constitutional office-holder.
Having examined the statements made about Ferguson, Justice Kurtzious had held that they were very serious allegations, as they suggested that Ferguson was corrupt and involved in misappropriation. The Judge had said the defences relied on by Jagdeo could not stand.
“[Jagdeo] must have bourne the seriousness of the allegations when he compounded his utterance, (for) he dared (Ferguson) to sue him. His utterances, therefore, do not meet the threshold of public concern. They were uttered in the face of materials that ought to have put him on notice that his utterances were not accurate. [Jagdeo] also failed to disclose the source of the information he disseminated,” Justice Kurtzious had said.
She said Jagdeo’s submission, that at the time of making the statement he was “only wondering”, reflects “[his] lack of knowledge of the events, if any, to which he referred.” Moreover, there is also no evidence that he sought to verify the information he sought to disseminate,” she had added.
As such, the High Court Judge concluded that Jagdeo had no real prospect of defending the lawsuit. In the circumstances, his application to have the judgement set aside was dismissed, with the court ordering him to pay costs in the sum of $75,000 to Ferguson.
Ferguson was seeking more than $50 million in damages from Jagdeo for statements he made on December 18 and 19, 2019 that were intended to damage her good character. She had also filed a similar suit against Guyana Times newspaper, which had published Jagdeo’s utterances.