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Jagdeo appeals High Court decision on compensating Ferguson for defamation

Last Updated on Wednesday, 23 June 2021, 12:33 by Denis Chabrol

Bharrat Jagdeo Annette Ferguson

Vice President Bharrat Jagdeo has appealed a decision by the High Court that he has to pay opposition politician Annette Ferguson damages for defamation.

“The Appeal has a real chance of success since the Appellant has a real prospect of successfully defending his claim and a reasonable explanation for his failure to timely file a defence”, and “an urgent stay is needed since the underlying proceedings are still ongoing, the appellant being required to submit submission as to the quantum of damages,” he said in court papers filed.

He is appealing the decision of High Court Judge Sandra Kurtzious after she dismissed all of his reasons for failing to file defence within the stipulated time.

The judge had said that based on the evidence, there was no chance of Mr. Jagdeo winning the defamation case against Ms. Ferguson.

Justice Sandra Kurtzious however, did not go ahead with her initial award of GYD$20 million default judgement but had left it to the lawyers for Ms. Ferguson and Mr. Jagdeo. She had originally claimed GYD$50 million.

Now Mr . Jagdeo wants that decision to be set aside and that he be allowed to file a defence within seven days.

Through his Attorney-at-Law, Davendra Kissoon, Mr, Jagdeo his contending that the judge  erred by in law and in fact by finding that the appellant had no real prospect of defending the claim, and erred and misdirected herself in law by entering a default judgment against the appellant without considering all of the grounds of his defence, in including but not limited to the defence of justification,

In court papers seen by News-Talk Radio Guyana 103.1 FM/ Demerara Waves Online News,  the appellant states that Justice Kurtzious erred in law by failing to appreciate the overriding objective of the Civil Procedure Rules 2016 in ensuring justice between both parties,  and that she also erred “by placing undue emphasis on the Respondent’s pleadings, without giving similar regard to the appellant’s defence.”

Mr. Jagdeo wants the Full Court to find that Justice Kurtzious erred by in law and in fact by finding that he did not specify the defamatory meaning sought to be defended as fair comment, those meaning being pleaded in paragraphs.

Further, he states that the trial Judge erred in law and in fact by attempting to assess the evidence and conducting a mini-trial, as opposed to merely finding that the appellant had a real prospect of success, overlooking and failing to assess the facts averred in his pleadings which would be proved at trial.

The Full Court is also being asked to declare that the judge erred in fact and in law by finding that the explanation proffered by  Mr. Jagdeo for his failure to file the defence was not a good and substantial explanation, applying a higher standard of requiring a good explanation, than the lower applicable standard of a reasonable explanation which is what is mandated by the Civil Procedure Rules.

Further, Mr. Jagdeo is asking the High Court to agree that the High Court Judge erred by failing to find that the COR violates Article 144(8) of the Constitution by failing to mandate that the he be given an opportunity to be notified and heard prior to the entry of a default judgment. The Full Court is also being asked to note that Justice Kurtzious erred in law and in fact by failing to appreciate the promptitude of Mr. Jagdeo in making his application to set aside the Default Judgment.

Other grounds for the appeal are the the High Court Judge erred in law by depriving  Mr. Jagdeo of his right to be heard and answer the claim,  failing to find that the Respondent ought to have notified his counsel, placing undue weight on the failure of the Appellant to timely file a defence and insufficient weight on the Appellant’s real prospect of success,  failing to properly consider provisions of CPR since the claim against the Respondent could not properly be dealt with separately from another case arising of substantially the same alleged defamatory comments, there being a risk of double recovery, inconsistent decisions and prejudice to the Defendant in that matter.

Also, the Full Court  is required to consider that the judge failed to appreciate and properly apply the provisions of the Section 17 of the Defamation Act, another case had been consolidated with this matter,  misconstruing and misapplying the law surrounding the defences of fair comment and qualified privilege, and failing to find that the only prejudice suffered by the Respondent would be the costs incurred in preparing and applying for default judgment.

Mr. Jagdeo further contends that the judge erred by failing to find that the Default Judgment was irregularly obtained, and failing to set the matter down for an assessment hearing, depriving the Appellant the opportunity to examine the Respondent on the scope of damages to be awarded, depriving the Appellant an opportunity to be heard and in breach of CPR Rule.

According to Mr. Jagdeo, in all the circumstances the learned trial Judge wrongly exercised her discretion and misapplied the applicable law.

Justice Kurtzious had said the allegations, including Ms. Ferguson being “corrupt”, made by Mr. Jagdeo were very serious  referred and he even dared her to sue him. She said no proof had been provided by Mr. Jagdeo and even when Ms. Ferguson had provided proof that she had only owned one house and land at a news conference, Mr. Jagdeo had not taken that into consideration.

The High Court had said lawyers for Ferguson and Jagdeo must make submissions on the award of damages by July 7 and she would deliver her decision on July 28, 2021.