22nd Feb 2024
In a 29-page ruling handed down this afternoon, the Caribbean Court of Justice granted Vice President Bharrat Jagdeo’s appeal reversing the Court of Appeal’s rejection to hear his application for leave to appeal the High Court’s refusal to set aside the default judgment rendered in the Annette Ferguson libel matter. Jagdeo was represented by attorney Devindra Kissoon of London House Chambers, and Ferguson, by attorney Lyndon Amsterdam.
High Court Judge Sandra Kurtzious had previously granted default judgment in favour of Ferguson and issued an award of damages and costs against Jagdeo in the amount of G$20M. Jagdeo unsuccessfully applied to set aside that decision, Justice Kurtzious refusing to do so, she only setting aside the award of damages.
He subsequently appealed that refusal to the Full Court. On hearing the appeal, Justice Priya Beharry ruled in favour of Jagdeo, while Chief Justice Roxane George disagreed and ruled that the default judgment should not be set aside, resulting in a divided Full Court.
Upon learning of the divided decision, Kissoon applied to the Full Court for a rehearing before three judges, or alternatively for leave to file a fresh Full Court appeal. Both applications were again denied.
By operation of the provisions of the High Court Act, the result of a divided Full Court was that Justice Kurtzious’ refusal was upheld.
Jagdeo, through his lawyer Kissoon, then applied to the Court of Appeal for leave to appeal the Full Court decision and for a stay of proceedings. The Court of Appeal, in a judgment delivered by Justice Rishi Persaud, along with Chancellor Yonette Cummings and Justice Dawn Gregory, refused to hear the application for leave, saying that the Court had no jurisdiction to do so, and ordered that the High Court proceed with its assessment of damages against Jagdeo. The Court of Appeal also ruled that since there was divided Full Court, the decision was not appealable.
Despite Kissoon’s multiple attempts to stay the assessment hearing both in the Court of Appeal and the High Court, the application for a stay was not granted, Justice Kurtzious proceeding with the assessment hearing despite the pendency of the CCJ Appeal, and indicated that she would rule on a quantum before the end of January 2024.
Having lost five applications in three lower courts, Jagdeo then turned to the CCJ for relief, successfully reversing the Court of Appeal decision.
In so doing, the CCJ, citing Jagdeo’s “impressive submission”, agreed that “it would be contrary to the objective and intent of the statutory regime of appeals to hold that the Court of Appeal has no jurisdiction to give leave simply because of the happenstance that the Full Court was composed of two High Court judges who were divided in their opinions. It must be extremely doubtful that the legislature would have invested the Court of Appeal with jurisdiction to give leave to hear an appeal from a decision reached by a three-member Full Court but to divest the Court of Appeal of that jurisdiction simply because there was a two-member Full Court which had divided opinions.”
Importantly, the CCJ noted that if the Court of Appeal’s decision was followed, “it would forever inoculate the decision of a single High Court Judge from review and thereby, potentially, forever immunize injustices from correction and for no good forensic reason intelligible upon any fair and reasonable reading of the legislation.”
Accordingly, the CCJ granted Jagdeo’s appeal and remitted the matter back to the Court of Appeal to consider the pending application for leave to appeal. It also granted his application to stay the High Court’s assessment of damages, pending the final outcome of proceedings.
