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COVID-19 pandemic/Elections 2020 no excuse for non-filing of defence- Ferguson

Lawyers for Vice President Bharrat Jagdeo have blamed the non-filing of his defence in a libel suit brought against him by former junior Minister of Communities under the previous APNU/AFC Government Annette Ferguson on preparations for the March 2020 elections and the COVID-19 pandemic.

This non-compliance with the Civil Procedure Rules (CPR) of the Supreme Court of Judicature led to Justice Sandra Kurtzious granting a $20 million default judgment against Jagdeo back in March 2020.

The judgment was in keeping with Part 12:01 (2) (d) of the CPR. Jagdeo, through his lawyer, Devindra Kissoon has since filed an application in which he is asking the court to suspend the enforcement of the judgment until the court rules on his other application to have the judgment overturned.

Jagdeo, who served as President of Guyana for two consecutive terms, also wants the court to dismiss Ferguson’s claim for libel as the statements made by him regarding her acquisition of a house lot at Eccles, East Bank Demerara are not defamatory.

Jagdeo only filed a defence in the case last month, more than one year after Ferguson brought the claim. And according to his lawyer, Jagdeo has a real prospect of successfully defending the lawsuit and that the defences of justification, fair comment, qualified privilege, and the provisions of the Defamation Act apply.

Ferguson’s lawyer, Lyndon Amsterdam has since responded to an affidavit in support of the application filed by Jagdeo to set aside the default judgment.

“…it is noteworthy that the Covid-19 pandemic is still affecting the world but this has not prevented the [Jagdeo] from filing this Application within a few days of being served with the Order of Court [judgment order],” Ferguson noted in an affidavit filed earlier this week at the High Court in Demerara.

According to Amsterdam, on March 23, 2020, new protocols for the filing of matters and documents in the Supreme Court’s Registry were published in the Official Gazette, and members of the Bar were notified of same by the Bar Association.

Amsterdam noted that during the onset of the pandemic, Jagdeo’s then-lawyer, Anil Nandlall, SC, now the Attorney General and Legal Affairs Minister, filed several matters in the High Court and documents in response to election-related matters by making use of the protocols set out in the Official Gazette and “the outbreak of COVID-19 in Guyana did not inhibit his active participation in these matters.”

“I will contend that the elections held in 2020 was determined on August 2, 2020, and since then, more than six months has elapsed and no application has been made by [Jagdeo] for relief from sanctions and enlargement of time to file a defence,” Ferguson submits.

The former minister under the previous APNU/AFC Government contends that she has been advised by her counsel and believes that inadvertence by counsel as a reason for non-compliance with rules has been frown upon and rejected as a reason for a litigant, not to comply with rules for the simple reason, that all lawyers can then put forward this reason to get an extension of time to comply with rules on behalf of their clients.

In the application to have the $20 million judgment overturned, Jagdeo’s lawyer states that his client’s failure to file a defence was as a result of his then-lawyer Nandlall being preoccupied with preparations for the March 2020 General and Regional Elections. Even after the end of the elections, Kissoon said that Nandlall continued to be extensively and exclusively engaged in matters relating to elections, including acting as lead counsel in elections-related litigations, as well as matters involving a recount of votes.

Also, Kissoon said that the COVID-19  pandemic resulted in the shuttering of Nandlall’s law office for several months and the subsequent relocation of files.  As a result, he added that Nandlall did not discover that the defence, though drafted, was not filed with the Court.

“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. [Jagdeo] ought not to be penalised for law office inadvertence.”

A Court Order seen by this publication made it clear that if Jagdeo fails to comply with the terms of the Order, that is to say, fails to pay the judgment sum, he will be held in Contempt of Court, and may be liable to imprisonment or to have his assets confiscated.

Apart from $20 million in damages, Jagdeo was also ordered to pay $75,000 in court costs to Ferguson. Ferguson has filed a similar lawsuit against the Guyana Times which published the statements made by Jagdeo. That case is still pending before the High Court.