Failure to defend $20m malicious prosecution case – AG: CASE FILE DISAPPEARED

THE state’s failure to defend a malicious prosecution lawsuit, which saw an eventual order by a Master of over $20 million in compensation to nine men acquitted of the murder of Vindra Naipaul-Coolman, was blamed on the case file somehow disappearing.

This was the explanation given to the country, including the Prime Minister, at a media conference called by Attorney General Reginald Armour, SC, on Wednesday.

Before the assembled media and the listening and viewing public, Armour dramatically took a large, thick file and dumped it on a table. He then went to the lectern to give his explanation.

He said the Naipaul-Coolman case file was delivered to the Solicitor General’s office, a subdivision of the Attorney General’s office responsible for defending the state against civil matters, and was never seen again.

Armour claimed the State had a “slam dunk” defence and owing only to the lack of a file, judgement was handed down in favour of the nine men.

He said “the causing of the file to disappear” will be investigated and in the shortest possible time, expects a report, on which he will as much as possible, account to the country.

Asked what message he had to citizens upset that something as insignificant as a missing file could cost the country what is believed to be the largest payout in its history, Armour said he understands their angst and he too wants justice.

Among those perplexed and concerned about the State's failure to proffer a defence to the malicious prosecution case, is Armour's boss Dr Rowley, who on Tuesday said he too was awaiting an explanation.

“I completely understand the ire of the public. I rushed to have this media conference because I recognised the public is due some explanation, as inadequate as my explanation at the point might be.

"I can associate the sense of outrage the public must feel. I understand the ire that people seemed to ‘get a bligh,’ a free pass in many circumstances, where they should be held accountable.”

“For those of you who wish to believe it, for the short time that I have been in office and the time that I shall remain in office, I don’t subscribe to the philosophy that people can commit crimes and walk away. And I would like to see accountability where accountability is due,” Armour said.

Armour deemed the file's disappearance as “sinister” and assured the matter will be fully investigated by an external investigator. He will seek legal counsel from a senior attorney on whether or not to involve the police and any necessary forensic investigation required.

The AG said he will also seek advice on whether or not an appeal of the decision can be pursued, to set aside the judgement pending the outcome of the appeal, adding that the default judgement, which triggered the final judgement, can be appealed.

The statement of case was filed on May 29, 2020, Armour said and served on the Solicitor General’s office on June 22, that year.

The next day, a file was sent to the Solicitor General for someone to be assigned to the case. Then the file disappeared. The case file submitted, was from counsel for the nine men Anand Ramlogan, SC, and his team and would have been copied to the court.

“Until yesterday when we got those papers, the secretariat of the Attorney General had never seen those documents. The file disappeared on the 23rd June, 2020. It seems incredulous and it demands an explanation,” Armour said.

He added that on August 5, 2020 the office of the Solicitor General’s office was served with a notice of a default judgement and received the same on November 12, that year.

Armour said his predecessor, Faris Al Rawi, implemented a system where the arms of the AG’s office, the Chief State Solicitor and Solicitor General are streamlined with the secretariat of the Attorney General.

He said the aim was to advise the AG on cases the two officers are doing as it is not mandatory that the Office of the Attorney General be directly involved in their cases.

He added that in 2018, Al Rawi issued a memorandum to the two offices to include the Attorney General's secretariat on matters they are involved in. Failure to do this, Armour said, could lead to disciplinary actions.

Based on that memo, Armour said it was compulsory for the Solicitor General’s department to inform the Attorney General's secretariat and the first time the secretariat was made known, was on Monday, the AG claimed.

“I am not seeking to pass the buck. I accept that the buck stops here. As AG, I am responsible for the conduct of civil litigation by and against the State. What has occurred is grievous and must never be allowed to happen again.”

Armour said he could not say if the Solicitor General at the time, Carol Hernandez, had the file or if current Solicitor General Karlene Seenath, had it.

Armour said he could not say how many people had access to the file, adding he was questioning the process from receipt of files to the end of cases.

He said that earlier this year Cabinet approved for his office to upgrade and better streamline the AG’secretariat which will give the AG greater reach and accountability.

Armour said over the past two years, the Solicitor General's Office received several notifications from the courts about its lack of defence.

A POOR EXCUSE

In an immediate response, attorneys for the nine men sent a press release in which they said Armour's explanation was similar to that of: the dog ate my homework.

The attorneys added that the missing file excuse, for failing to defend the prosecution of the men, was amusing and ridiculous and had all the makings of a Netflix movie.

“We can say without fear of contradiction that the Ministry of the AG was kept fully abreast of this case, at every step of the litigation. The court itself issued notifications to the State, as the matter progressed, and we fully complied with our duty to serve relevant documents on to the state throughout the matter.”

The attorneys' release added that to believe the entire case went on for two-plus years without the State having a file, was “startling, stupendous and crazy.” It added that Armour’s explanation suggests that lead counsel for the nine – Anand Ramlogan, SC – in a hoodie and shades, snuck past security and stole the file in order to win the case. They said this was nonsensical and that the State lost because of incompetent leadership.

Also commenting on the AG’s position was Opposition Leader Kamla Persad-Bissessar, who in a media release, described Armour as "a disgrace." She called on the public to dismiss his claims.

THE CASE

On Monday, High Court Master Martha Alexander awarded a total of $19,168,917.56 for malicious prosecution and exemplary damages, along with $200,917.56 in legal fees, and $68,000 for an expert witness.

She also ordered that interest be added to the damages for each of the nine, at a rate of 2.5 per cent, from May 29, 2020 – when the claim was filed – to January 30. The sum amounts to more than $20 million.

The nine: Shervon Peters, his brother Devon, Anthony Gloster, Joel Fraser, Ronald Armstrong, Keida Garcia, Jameel Garcia, Marlon Trimmingham and Antonio Charles were among a group of 12 who went on trial in 2016, for Naipaul-Coolman’s murder. They were all from Upper La Puerta, Diego Martin.

Earl "Bobo" Trimmingham and Lyndon "Iron" James have since been ordered to be re-tried.

After being acquitted, the nine filed a malicious prosecution suit and were represented by Ramlogan, SC, Renuka Rambhajan, Ganesh Saroop and Natasha Bisram.

During the claim, the State was represented by now High Court judge Karen Reid Ballantyne and Amrita Ramsook. Before being sworn in as a Judge last December, Ballantyne was the deputy Solicitor General and served as the Solicitor General of Grenada between 2021 to 2022.

Since the matter was filed, State attorneys were able to reduce the pay out from approximately $3.1 million each, to $2.1 million, but failed to proffer a substantive defence against the lawsuit.