State to pay $20m to 9 former murders suspects

NINE men who were once charged with the high-profile kidnapping and murder of businesswoman Vindra Naipaul-Coolman have won their appeal reclaiming a $20 million payout from the state.

In a majority decision, the Court of Appeal on June 9 reinstated the compensation they had initially been awarded.

Justices Nolan Bereaux and Mark Mohammed formed the majority, setting aside a previous judge’s decision to block the payout and restoring both the default judgment and the original order by the master of the court.

Justice Ronnie Boodoosingh dissented.

The men had sued the state for wrongful imprisonment and malicious prosecution after they were acquitted at the end of the criminal trial.

In January 2021, High Court judge Joan Charles had ruled in the men’s favour after the state failed to defend the claim. A master later assessed the damages and awarded them each around $2.1 million in January 2023.

But in December 2023, Charles overturned that default judgment and the $20 million award.

Charles later said the lawsuit was not properly served on the Attorney General’s office, as required by law. She said the rules on serving legal documents to the state were strict and must be followed.

The men’s malicious prosecution lawsuit was filed in May 2020 and served in June 2020. After the state didn’t respond, the men applied for a default judgment in August. The state didn’t show up at the hearing, and the judge granted the judgment in default in January 2021.

The damages were assessed in late 2022 and finalised in January 2023. But by December, Charles had reversed her own earlier ruling.

Following media reports about the award, then-Attorney General Reginald Armour, SC, said his office only learned of the case when the damages were announced. He said the file had gone missing, which is why no defence was filed. A retired judge, Stanley John, was brought in to investigate.

Less than a month later, John said the file was found and turned over to the acting Solicitor General, but he gave no details on where it was found or by whom.

In a statement to Parliament in January, when he tabled John’s report, Armour said there was no criminal, fraudulent or disciplinary offence committed in the case of the “missing file.”

John’s 81-page report noted that the “missing file” was always available in electronic form.

But no one, namely the Solicitor General, asked for it. Armour said the debacle was “avoidable.”

The report made detailed recommendations for the restructuring of the civil law department of the AG’s office which resulted in legislative amendments contained in the (Act 14 of 2024) titled the Miscellaneous Provisions (Judicial and Legal Service) Act, assented to on September 23, 2024. The nine men awarded damages were: Shervon and Devon Peters, Anthony Gloster, Joel Fraser, Ronald Armstrong, Keida and Jameel Garcia, Marlon Trimmingham, and Antonio Charles. They were all freed in May 2016. Gloster was killed in a drive-by shooting in 2021.

In deciding the case, Bereaux, who wrote the majority decision, said the default judgment application was properly served. He said Charles made “fatal omissions” in deciding to overturn her earlier default ruling.

At the appeal, the men’s lawyer, Anand Ramlogan, SC, disagreed with Charles’ reasoning for reversing her earlier ruling.

He said a state counsel accepted the documents and even told the process server she was authorised to do so. Ramlogan also pointed out that the state never officially said the individual was not authorised.

He argued that the state created its own problem by failing to publish the names of people who were authorised to receive legal documents, as required by the State Liability and Proceedings Act.

“They can’t now complain about the system they allowed to happen,” Ramlogan said.

He also said the state only moved to cancel the judgment after public backlash over the $20 million award. He warned that if the court ruled the lawsuit wasn’t properly served, many other cases against the state could also be in trouble.

Ramlogan argued the state had already accepted blame during the damages process and should not have had the judgment overturned.

But Rolston Nelson, SC, who represented the AG, said the law clearly laid out how lawsuits must be served on the state. He said those steps weren’t followed in this case, so the court never had the legal power to issue the judgment in the first place.

Nelson also criticised a court registrar who referred the case to a master for damages assessment, saying only a judge could do that. “The registrar overstepped. That order was invalid,” he said.

He also argued that because the men sued the state in the wrong way, they should still be made to pay its legal costs.

Bereaux said the state only applied to set aside Charles’ default judgment four years after she gave it and a year after damages were assessed but the rules for the granting of a default judgment or objecting to it were clear. He also held that the rules for service were also fulfilled by the claimants’ attorneys.

“It was not mandatory for the judge to set aside the judgment for want of service. She was plainly wrong.”

He also noted that the state did not apply to extend time to file a defence or oppose the application for default judgment.

“There was no material before the judge, nor before us, showing why the judgment should not have been granted or if granted would be set aside,” he added, pointing out that the judge held the men’s case was neither frivolous or erroneous in law when she entered the default judgment.

“The ingredients to establish the tort of malicious prosecution were fully set out by the appellants. These were all matters which the judge would have had to consider. She did so but with no material put forward by the respondent to undermine the statement of case.

“Claimants always face an uphill battle to establish malice which is essential to the tort. However, it is not in every difficult case that leave to enter default judgment must be refused.”

While Bereaux noted that the state had a good prospect of success of defending the malicious prosecution claim, he said the Attorney General’s office was “clearly aware” of the assesment before the master and fully participated in it but gave no reason for failing to set aside the default ruling.

“No explanation was provided by the Attorney General. The application only came after harsh public criticism and the public outcry.”

“The Attorney General is not entitled to have the default judgment set aside merely because of dissatisfaction with the award of damages assessed by the master.

“Public opinion is not a barometer for the rendering of judicial decisions.”

Bereaux further noted that no guilt was proven the the case and they enjoyed the presumption of innocence.

“The appellants were charged and prosecuted in accordance with the due process provisions of our Constitution.

“They were found not guilty, in accordance with due process. They are entitled to pursue their claim for damages for what they perceived to be a malicious prosecution.”

The majority also dismissed the AG’s cross appeal and overturned the original cost orders with the state being made to pay the men’s costs at the High Court and the Court of Appeal fit for senior and junior counsel to be assessed in default.

Ganesh Saroop and Natasha Bisram also represented the men. Rolston Nelson, SC, Ria Mohammed and Elena Araujo appeared for the Attorney General.

The Master's order

On the January 30 2023, Master Martha Alexander ordered the State to pay to the nine men:

i. Damages for malicious prosecution with an uplift for aggravated damages in the sum of $2 million each with interest at the rate of 2.5 per cent per annum from May 29, 2020 to January 30, 2023;

ii. Exemplary damages in the sum of $100,000 each;

iii. Expert’s costs in the sum of $68,000; and

iv. Prescribed costs in the sum of $200,917.56.

This amounted to a grand total of more than $20 million.