Ferguson fails again in bid to avoid revealing assets to State

BUSINESSMAN Steve Ferguson has again failed in his attempt to have the High Court in Trinidad and Tobago stop the State from demanding information from him as it seeks to enforce a US$131 million judgment against him in Miami.

In a ruling on October 15, Justice Frank Seepersad said his latest challenge was almost identical to one previously filed and did not “establish any fundamental factual development” to justify having a court reconsider granting an injunction.

He held Ferguson had not followed due process and invoked the court again to “re-litigate” his complaint already considered.

Ferguson filed the emergency application for an injunction on September 27.

Ferguson has complained that the State is pursuing “aggressive measures” to enforce the 2023 Miami judgment against him and two others, including demanding the production of documents, information and the taking of depositions.

In May, he filed a similar application, which Justice Nadia Kangaoo dismissed in a constitutional complaint. She is still presiding over that matter, but Ferguson has asked for her to recuse herself. She is expected to give a ruling and make a statement in that application at the end of October.

However, Ferguson intends to have both complaints joined.

Seepersad said he could not exercise an appellate function and it would be inappropriate for him to express a view on Kangaloo’s ruling, particularly on Ferguson’s claim against her of apparent bias.

Seepersad said Ferguson had had sufficient time to apply for an injunction in his previous challenge if he felt the move to depose him amounted to a substantial and fundamental change of circumstance.

He said a party could not fight the same battle twice unless there was a material change, and in Ferguson’s case there was none.

In the latest complaint, Ferguson said the State is demanding information from him, his children and his attorneys. He is expected to be deposed on October 24 in the Miami courts.

He says if he declines to submit to a deposition, he is liable to be held in contempt of court and have his appeal of the 2023 judgment rejected.

To this, Seepersad said, “Rights are never absolute and they are always subject to lawful limitations. If the laws in Florida do not provide for disclosure of the information which is being sought, then those arguments can be traversed when the hearing is occasioned in that jurisdiction on October 24, 2024.

“This court must fiercely defend the administration of justice and it is paramount that due process is followed.”

He also said he had a duty to insulate the litigation process from “multi-dimensional and duplicitous attacks...

“This court is not satisfied there has been any fundamental or substantial change which can justify giving the claimant another bite at the cherry.”

On Ferguson’s complaint about possible self-incrimination, Seepersad said it was “difficult to appreciate on what basis a court in TT could or should grant relief to protect the claimant from the potential breach of his rights under the US Constitution.

“The claimant cannot be extradited to the US to face charges there and the danger of the claimant incriminating himself in any real way in relation to the US criminal proceedings is negligible unless the claimant voluntarily surrenders himself to that jurisdiction, and he has not done so for upwards of 15 years.”

He pointed out that Ferguson has “pleaded the Fifth (Amendment)” in the US court, so it was “patently obvious” that he had remedies in the Florida court.

Ferguson has maintained his Fifth Amendment right against self-incrimination to all but two of the questions on a fact information sheet.

Seepersad also said the State has agreed not to disclose any information received in the disclosure process to anyone, including law-enforcement or prosecutorial authority in the US or TT.

He also said a review of the proceedings in Florida demonstrated that for nearly two decades, Ferguson subjected himself to the jurisdiction of the US courts and unsuccessfully sought constitutional protection there.

Seepersad also addressed Ferguson’s complaint of the AG’s violation of his rights by initiating the multi-million-dollar US Racketeering Influenced and Corrupt Organisations (RICO)-case judgment.

He said while the issue was not frivolous, and if there was a violation, the court’s ire would be invoked to ensure rights are not compromised on the altar of political expediency, in Ferguson’s case he could have brought a judicial-review claim to challenge it.

“Evidently, the trial court in Florida was satisfied as to the existence of the defendant's requisite locus standi under Florida law and the US Constitution, as it proceeded to hear and determine the matter.”

He also said the State stood to suffer greater prejudice if an injunction was granted, since the identification of assets was crucial to the enforcement of the judgment, and a risk of dissipation of assets could not be discounted.

In March, Ferguson failed to get the Miami court to block the disclosure of his assets.

In his other High Court claim, Ferguson contended that the institution of the Miami civil case against him violated his rights to due process and protection of the law.

On May 15, 2023, Miami district court judge Reemberto Diaz entered final judgment for TT in the racketeering case against Ferguson, former UNC minister Brian Kuei Tung and US businessman Raul Guitierrez Jr for US$131,318,840.47.

The final judgment followed a jury’s verdict in March 2023, which led to TT getting triple the damages it sought under RICO law.

The Miami jury found Ferguson liable for multiple claims arising from the fraud linked to the redevelopment of the Piarco International Airport in the late 1990s and early 2000s, Kuei Tung, a minister of finance under the Basdeo Panday administration, and Gutierrez, the former principal of Calmaquip Engineering Corporation – which provided specialised equipment at the airport – were previously held liable in the racketeering case.

Ferguson has appealed the Florida court’s judgment, which is pending.

Ferguson is represented by Edward Fitzgerald, KC, Joseph Middleton, KC, Fyard Hosein, SC, Aadam Hosein and Annette Mamcham.

Senior Counsel Douglas Mendes, Simon de la Bastide and Michael Quamina and attorneys JoAnne Julien, Clay Hackett and Sashi Indarsingh represented the State.