Appeal Court considers overturn of $20m judgment against State

The content originally appeared on: Trinidad and Tobago Newsday

Anand Ramlogan –

THE COURT of Appeal is being asked to overturn a judge’s ruling setting aside a $20 million default judgment award against the State in a malicious prosecution lawsuit brought by nine men who were previously accused of kidnapping and killing businesswoman Vindra Naipaul-Coolman.

On Wednesday, Justices of Appeal Nolan Bereaux, Mark Mohammed and Ronnie Boodoosingh heard submissions against the December 2023 ruling of Justice Joan Charles to set aside the default judgment she granted in January 2021 and the subsequent assessment of damages for the men completed by High Court Master Martha Alexander in January 2023.

The judges have reserved their decision.

Three of the nine men were in court for the hearing of the appeal.

In her decision, Charles agreed that the men’s original malicious prosecution claim was not properly served on the Attorney General’s office as required under the State Liability and Proceedings Act, despite it being accepted by a state counsel in the Solicitor General’s department as has been the practice for similar service in other cases.

The act provides that service of litigation against the State should be served on the AG’s office through the Solicitor General or personnel who are designated through a notice in the TT Gazette or left at the SG’s office or that of the designated officer.

In her ruling, Charles held, “The rules relating to service of originating documents and notices on the State are clear and mandatory – as such, they must be complied with.”

However, the men’s attorney Anand Ramlogan, SC, maintained there was “good service” of the claim.

He said the state counsel who accepted service of the claim also assured the process server she was authorised to do the same.

Ramlogan said the Solicitor General failed to go on affidavit to say the state counsel was not authorised to accept service and to now say the state counsel was not authorised to accept the claim and did not bring it to the attention of the SG was a serious offence under the Judicial and Legal Service Regulations.

He also said the State was at fault for breaching the State Liability and Proceedings Act by not gazetting who was authorised to accept service on behalf of the Solicitor General.

“They cannot now complain of the state of affairs they have created.”

He said it was only after the public uproar after the master’s assessment of $20 million in damages for his clients became known, did the State sought to have the default judgment set aside despite having accepted liability at the assessment stage.

Ramlogan warned that if the Appeal Court upholds the argument on improper service there would be ramifications for all other cases against the State before the courts which were all served in the same way.

He also raised the principles of estoppel – which prevents someone from going back on their word – and waiver and argued that his clients should not have been ordered to pay the State’s costs in the setting aside ruling.

In response, Senior Counsel Rolston Nelson, who represents the AG, said although the State did participate in the assessment before the master, that was no bar against seeking to have the default judgment set aside.

Nelson insisted there was a special regime for service on the State set out by the act in unambiguous terms.

Rolston Nelson –

“It affords you three avenues…and is mandatory and restrictive, you cannot do otherwise.”

He said since the service was bad, then the court’s jurisdiction could not be engaged.

“There was no effective service in this case so you ended up with a nullity. It is pointless to say afterwards you participated (at the assessment stage) when you did not engage the court’s jurisdiction from the onset by bad service.

Nelson also faulted the assistant registrar of the High Court who effected Charles’ order in February 2021, after she granted default judgment when the State failed to defend the malicious prosecution claim, for inserting a clause that an assessment for damages would be done by a master.

He said the registrar had no power to send the matter to a master.

“He made an order against the State which he could not do. That must come from the judge and flow from her order. The order for assessment was ultra vires,” he maintained.

Nelson also said having wrongly brought the action against the State, nothing was preventing the men from paying its costs.

The malicious prosecution claim was filed on May 29, 2020, and “served” almost a month later.

After there was no appearance or defence by the State, the men’s lawyers applied for the default judgment on August 5, 2020.

The application was “served” on November 12, 2020, and on the same date, the court office issued a notice of hearing to the Solicitor General. However, the notice was served on the Chief State Solicitor’s Department almost a week later.

On January 8, 2021, Charles granted the default judgment. The assessment commenced on November 4, 2022 and on January 30, 2023, Alexander delivered judgment on the assessment of damages for the men.

On December 6, 2023, Charles set aside the award and her earlier default judgment.

After media reports on the master’s assessment of damages were published, Attorney General Reginald Armour, SC, said the first time his office had heard of the malicious prosecution claim was when the assessment decision was given.

He said a defence had not been filed by the State because the file had gone missing.

Retired Justice Stanley John was to probe the “disappearance” of the file and determine what, if anything, went wrong in the Office of the AG that led to the State’s failure to defend the claim.

Less than a month later, John said the file had been found and handed over to the acting solicitor general. He gave no details on where the file was found, or by whom. Nelson was also retained by the AG to advise on how to get the default judgment set aside.

The nine men who were each awarded $2.1 million were Shervon and Devon Peters, Anthony Gloster, Joel Fraser, Ronald Armstrong, Keida and Jameel Garcia, Marlon Trimmingham and Antonio Charles.

They were freed of the murder charges in May 2016. Gloster was killed in a drive-by shooting in 2021.