DEREK ACHONG

Se­nior Re­porter

derek.achong@guardian.co.tt

The Of­fice of the At­tor­ney Gen­er­al has sig­nalled its in­ten­tion to pur­sue a fi­nal ap­peal over a de­ci­sion by the Court of Ap­peal to up­hold a $20 mil­lion de­fault judg­ment in a ma­li­cious pros­e­cu­tion law­suit brought by nine men for­mer­ly ac­cused of the kid­nap­ping and mur­der of busi­ness­woman Vin­dra Naipaul-Cool­man.

Ac­cord­ing to a no­tice on the Privy Coun­cil’s web­site, the AG’s Of­fice last month filed an ap­pli­ca­tion for per­mis­sion to ap­peal a judg­ment de­liv­ered by three judges of the Court of Ap­peal in June.

A pan­el of British Law Lords will now re­view the pre­vi­ous judg­ments in the case and de­cide whether it should be heard, as the lo­cal Court of Ap­peal had pre­vi­ous­ly re­fused per­mis­sion for a fi­nal ap­peal.

While the Ap­peal Court’s de­ci­sion on leave to ap­peal was de­liv­ered oral­ly in late Ju­ly, the judges sub­se­quent­ly pro­vid­ed writ­ten rea­sons.

Ap­pel­late Judges Nolan Bereaux and Mark Mo­hammed agreed that the State should not be grant­ed per­mis­sion. Jus­tice Ron­nie Boodoos­ingh, who was re­cent­ly ap­point­ed Chief Jus­tice fol­low­ing the re­tire­ment of for­mer CJ Ivor Archie, pro­vid­ed a dis­sent­ing opin­ion in which he said he would have grant­ed per­mis­sion.

In his rul­ing, Jus­tice Bereaux re­ject­ed the State’s con­tention that the claim would have failed at tri­al if it had been prop­er­ly de­fend­ed by the AG’s Of­fice.

“While they may have a heavy bur­den to dis­charge, it does not fol­low that the case is bound to fail,” Jus­tice Bereaux said.

He al­so held the AG’s Of­fice re­spon­si­ble for the sit­u­a­tion.

“There is no ex­cuse for per­mit­ting this case (one he al­leges is bound to fail) to pro­ceed to a de­fault judg­ment un­de­fend­ed and then to take an­oth­er three years or so be­fore at­tempt­ing to set it aside — and this on­ly af­ter a pub­lic out­cry about the quan­tum of dam­ages award­ed to the ap­pel­lants in the as­sess­ment of dam­ages, an as­sess­ment ex­er­cise which the re­spon­dent par­tic­i­pat­ed in and de­fend­ed dur­ing the three-year pe­ri­od,” he said.

“The ques­tion of ex­cep­tion­al­i­ty is re­al­ly one of ex­cep­tion­al fault on the part of the re­spon­dent,” he added.

In his dis­sent, Jus­tice Boodoos­ingh said he would have al­lowed a fi­nal ap­peal.

“The ap­pel­lants will there­fore ben­e­fit from an es­sen­tial­ly $20 mil­lion-plus wind­fall in­volv­ing pub­lic funds where, had a de­fence been al­lowed, the ap­pel­lants would have al­most cer­tain­ly not have suc­ceed­ed,” Jus­tice Boodoos­ingh said.

In Jan­u­ary 2021, High Court Judge Joan Charles grant­ed the de­fault judg­ment af­ter the AG’s Of­fice failed to file a de­fence with­in the stip­u­lat­ed time.

Af­ter ini­ti­at­ing an in­ves­ti­ga­tion in­to the han­dling of the mat­ter, for­mer at­tor­ney gen­er­al Regi­nald Ar­mour, SC, re­vealed that pre­lim­i­nary in­quiries sug­gest­ed the case file had “dis­ap­peared” af­ter be­ing served on his min­istry.

An in­ves­ti­ga­tion led by re­tired judge Stan­ley John and re­tired As­sis­tant Com­mis­sion­er of Po­lice (ACP) Pamela Schullera-Hinds was sub­se­quent­ly launched. The miss­ing file was lat­er re­port­ed­ly “re­turned” to the So­lic­i­tor Gen­er­al’s Of­fice and hand­ed over.

In De­cem­ber 2023, Jus­tice Charles up­held an ap­pli­ca­tion by the AG’s Of­fice to set aside the de­fault judg­ment and the cor­re­spond­ing as­sess­ment of dam­ages, lead­ing to the State’s ap­peal.

The nine men were rep­re­sent­ed by Anand Ram­lo­gan, SC, and Ganesh Sa­roop of Free­dom Law Cham­bers. The AG’s Of­fice was rep­re­sent­ed by Rol­ston Nel­son, SC, Ria Mo­hammed-David­son, and Ele­na Arau­jo.