By LAMECH JOHNSON
Tribune Staff Reporter
THE proof a judge used to find Billionaire fashion designer Peter Nygard guilty of contempt did not satisfy the standard of clear evidence beyond a reasonable doubt, it was decided yesterday.
As promised last November when they allowed Nygard’s appeal and squashed his 30-day jail sentence and $50,000 fine, Court of Appeal Justices Anita Allen, Christopher Blackman and Abdulai Conteh gave their reason for allowing the appeal yesterday when they handed down a written ruling in the matter between Nygard and his neighbour, Louis Bacon.
Mr Bacon is the owner of Point House Corporation (PCH), the applicant in 2012’s contempt matter that stems from a legal battle between the two involving a property right of way.
In the judgement, the judges responded to the critical issue of the appeal, which questioned the completeness of transcripts from a June 2012 Supreme Court case and whether there was “an enforceable and clear undertaking” given by counsel for Nygard at a June 2012 hearing.
They ruled that “even if Justice Isaacs was entitled to rely on the transcript of the June hearing, there was no unambiguous material therein that the then-counsel for the appellant specifically gave an undertaking to the court on behalf of his client that was certain and unequivocal”.
The judges continued: “The uncertainty as to the precise terms of the alleged undertaking militated against agreement by counsel as to the terms of an order. Moreover, the rules of court and the procedure for commencing an application for contempt must be strictly complied with.
“The affidavits which constitute evidence for the purpose of the hearing must be served with the Notice of Motion for the committal order” the judges noted, adding that there was a clear difference of uncertainty relating to the precise terms of promise in both documents presented to the court.
The judges referenced words from an authority case decided in June 2012: “Contempt of court is a grave matter with serious consequences for the contemnor; but the law requires that proof of it be established beyond reasonable doubt.
“It was for the foregoing reasons on the conclusion of the hearing of the appeal, we allowed the appeal as we were satisfied that the material upon which the learned judge found the appellant to be in contempt of court to be ambiguous, and demonstrably not satisfying the standard of clear evidence beyond reasonable doubt.”
In October 2012, Justice Stephen Isaacs found Mr Nygard guilty of contempt and ordered that he be committed to Her Majesty’s Prison for 30 days.
The imprisonment would not be enforced on the condition that Nygard provided “proof that he has paid a fine of $50,000 to the Public Treasury within 14 days of today’s date and he liquidates the restoration expenses incurred by PCH within 14 days of the presentation of the bill, vouched by invoices, for same,” the judge said.
The basis for PHC’s contempt application was that Mr Nygard did not do as promised, which was to immediately remove the words “To Nygard Cay” from the roadway, refrain from affixing any further signs of any kind on the roadway, and make no further alterations to the state of the roadway area pending the September 4 hearing and decision on the summons filed in the court by both Mr Bacon and Mr Nygard in June.
It was claimed that instead, Mr Nygard on June 18, 2012 through his workers, altered the roadway area by removing several coral stones and destroying certain plants along the roadway that PHC had owned for more than five years.
It was further claimed that the following day, June 19, Mr Nygard through his servants, altered the roadway area by adding another layer of asphalt to the area in front of the entrance gate to Nygard Cay.
Then, on July 14, Mr Nygard allegedly, through his servants, cut away, removed and destroyed the gates owned by PHC and installed posts on the company’s property.
Two weeks later, on July 31, Mr Nygard, through his servants, reportedly caused several large stones to be placed on a section of the roadway that crosses over the land owned by Mr Bacon.
All of these actions, according to PHC’s application, were undertaken in spite the terms given to Mr Nygard in court on June 13.
Last November, Mr Nygard was the only one to present arguments to the Court of Appeal on the contempt matter. Mr Bacon did not oppose the Nygard contempt appeal.
Brian Moree, QC, represented Nygard while Robert Adams represented Mr Bacon.
Mr Adams was commended yesterday by Justice Conteh for not opposing the appeal in “keeping with the finest tradition of the profession”.
“If there is clearly no merit in a case, counsel should not needlessly pursue or oppose it,” Justice Conteh said, expressing gratitude to Mr Adams for his candid concession to the appeal which “immeasurably helped its speedy conclusion”.