By LAMECH JOHNSON
Tribune Staff Reporter
PETER Nygard, the Canadian fashion mogul, has been ordered to return to court in September for the continuation of proceedings against him concerning his alleged contempt of court.
Justice Rhonda Bain made the ruling in the afternoon session of a hearing on Friday. It stemmed from Nygard, on May 7, being served by environmental group Save The Bays (STB) with a legal notice of its application accusing him of breaching the terms of an injunction barring him from engaging in development activities at his home in Lyford Cay.
Not only was Mr Nygard ordered to appear on September 28, but he was informed that he will be cross-examined concerning the allegations brought against him.
On Friday morning, Nygard’s lawyer, Elliot Lockhart, QC, asked the judge to reconsider her initial position that the Canadian multi-millionaire be made to appear at subsequent hearings.
On Thursday, Nygard had not shown up at the Ansbacher House courtroom, which prompted a legal back and forth between Mr Lockhart, and STB lawyer Fred Smith, QC, concerning whether Nygard should be present for the proceedings.
The judge ultimately used her discretion to order that Nygard appear in her courtroom.
“Pursuant to your order,” said Mr Lockhart on Friday, “Mr Peter Nygard is here.”
“We would ask that he be allowed to leave and the proceedings continue in his absence,” the lawyer added.
“If there is need for him to give evidence we would have to summon him again?” Justice Bain asked.
“I will conduct his defence,” the lawyer said, emphasising that while he could not tell the court how the matter would end “I have a course in my mind where I will take it”.
Mr Smith said that, while he would not advise counsel on how to conduct its defence, “I do object to the indication that this case is going to be handled by him in a fluid way.”
The lawyer added that guidelines exist for counsel representing an alleged condemner which are supposed to supply the court and applicants with preliminary points they intend to argue.
Mr Smith added that Nygard had been made aware of these proceedings for some time and as “this is not intended to be a trial by ambush, we should have had notice before now.”
After argument, Justice Bain ruled that Mr Nygard is not excused “and on the adjourned date Mr Nygard is also expected to show up”.
The ruling shocked Mr Lockhart. “I’ll put it in the record that you indicated you are shocked,” the judge said.
Mr Lockhart said he wished to address the court on a case authority - Thursfield v Thursfield - cited by Mr Smith on Thursday. “You will see from this decision that there is no absolute requirement for an alleged condemner to be physically present at any time during the proceedings,” he argued.
“However the court has the power to order him to be in attendance. There is nothing that prohibits him from doing so as was the case here. The condemner never attended despite the order and the court vested upon him the maximum power it could.”
Mr Lockhart said the absence of the condemner did not stay the proceedings nor did it affect the power of the court’s final judgement. He noted that he complied with the court’s order and produced Mr Nygard for 10.30am as requested.
“So Mr Nygard has no desire of flouting any order of this court,” the lawyer submitted, adding that he was not one to “advise him to travel down that road”.
Mr Lockhart asked the court’s discretion to reconsider her decision. Justice Bain said she would do so after actual proceedings began, at 12.15pm.
Mr Smith drew to the court’s attention photographs which purported to show that over the course of December, 2013, substantial amounts of sand were progressively dredged from the Clifton Bay side of the Lyford Cay property and pumped onto Nygard’s private beach.
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.
STB’s battle with 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 Nygard achieved this without the necessary permits and approvals, claims that have been denied by Nygard.
The proceedings will resume on September 28, 29 and October 1 and 2.
Dawson Malone, Martin Lundy II and Adrian Gibson appeared alongside Mr Smith. Gia Moxey appeared with Mr Lockhart for the proceeding.