By LAMECH JOHNSON
Tribune Staff Reporter
FASHION designer Peter Nygard risks jail if he does not appear for today’s hearing seeking his committal to prison for alleged contempt of court.
The Canadian multi-millionaire was expected to appear before Justice Rhonda Bain yesterday concerning the application brought by environmental group Save The Bays (STB) that, on May 7, served Mr Nygard with legal notice of its application accusing him of breaching the terms of an injunction barring him from engaging in
development activities at his home.
If the application succeeds, the judge can commit the Lyford Cay resident to prison for a determined period of time, exercise the discretion to impose a fine or seize assets in his possession.
Mr Nygard did not show up for the proceedings in the Ansbacher House courtroom which prompted the judge to ask counsel on record Elliot Lockhart, QC: “Why is your client not present?”
Mr Lockhart replied: “His (Nygard) case is that this has nothing to do with him.”
“I don’t know where he is,” the lawyer added, stating that he telephoned the contact number given to him “but I do not have direct access to him, except by telephone.”
“I’ve been instructed to take over for him. Personally, I’ve sent one letter since my engagement.”
“I hear what you’re saying, but you need to make contact with your client,” the judge said. “He should be here tomorrow (Friday).”
Save the Bays’ battle with Mr Nygard over the construction/development activities at his Lyford Cay home stem from allegations that the activities have led to substantial growth of the property. The group claims that the Canadian has almost doubled his property’s size, from 3.25 acres to 6.1 acres, since he acquired it in 1984 by allegedly reclaiming Crown land from the sea.
The advocacy group is alleging that Mr Nygard achieved this without the necessary permits and approvals, claims that have been denied by Mr Nygard.
In July 2013, Justice Bain ordered that until the conclusion of judicial review proceedings challenging the legality of the construction of a groyne and the dredging of the sea bed off Nygard Cay, neither activity could continue to take place.
Last December, however, Save the Bays produced in the Supreme Court photographs which purported to show that over the course of that month, substantial amounts of sand were progressively dredged from the Clifton Bay side of the property and pumped onto Mr Nygard’s private beach.
In yesterday’s proceedings, Mr Lockhart said an affidavit of his client dating back to November 25, 2013 could shed light on the present situation.
In the affidavit, according to Mr Lockhart, Mr Nygard acknowledges the injunction stemming from the ongoing proceedings before the court and notes that as a private citizen, the present case should only involve government officials who approved the permits he received to carry out his developments at his home.
The document finally notes that Eric Gibson, as Mr Nygard’s special projects manager, had his permission to swear affidavits on his behalf. Melissa Hall, an assistant, is also mentioned.
“I saw earlier today two affidavits,” said Mr Lockhart, adding that beyond those documents “I have no instructions.”
Fred Smith, QC, and lawyer for STB argued: “The June 14, 2013 order made by the Supreme Court on page six, gives penal notice to Mr Peter Nygard that if he neglects to obey the orders of the court, he may be held to be in contempt and to be committed to prison, or a fine, or sequestration of his assets.”
Mr Smith also made mention of the numerous alleged failed attempts to serve Mr Nygard with the documents concerning the present application.
Mr Lockhart clarified that his firm had always been in agreement to accept documents since being instructed in the matter.
Mr Lockhart said his client was not intending to disrespect the court by his absence, but “to say that the court cannot proceed in his absence is a misrepresentation.”
Justice Bain noted that Mr Nygard’s November 2013 affidavit “doesn’t say that Mr Gibson will appear on his behalf.”
“I’m saying as an officer of the court, I’ve been given consent to appear on his behalf,” Mr Lockhart emphasised, while suggesting to Mr Smith that he “ought to make good his assertions that Peter Nygard is guilty of contempt and not be side-tracked.”
Mr Smith argued that both Mr Lockhart and Mr Nygard were making light of the entire matter but said that the allegations are serious and “penal consequences may ensue.”
Mr Lockhart asked Mr Smith if he had any case authority “for these proceedings not being heard in the absence of Mr Nygard up to judgment.”
“If there is no absolute requirement on the first point, then I submit this is a waste of time,” the lawyer added.
“Is Mr Nygard prepared to produce an affidavit consenting to continuation of these proceedings in his absence?” Justice Bain asked.
“I will produce an affidavit, filed no later than in the morning bearing the name Peter Nygard. Should I fail in that effort, you can take whatever course open,” Mr Lockhart submitted.
The judge ultimately used her discretion to order that Mr Nygard appear today in her courtroom.