By LAMECH JOHNSON
Tribune Staff Reporter
A JUDGE did not mince her words yesterday in declaring that Canadian fashion mogul Peter Nygard’s “scandalous” accusations of the court’s bias in matters stemming from an ongoing judicial review were without merit and undermined “the administration of justice”.
Justice Rhonda Bain was asked to recuse herself of committal proceedings involving Mr Nygard through a notice of motion filed in the Supreme Court by his lawyer, Elliot Lockhart, QC, on the ground of bias. The motion also showed that Mr Nygard was seeking an order to stay all further proceedings against him pending the hearing of the motion.
However, in a judgment handed down yesterday, the judge rejected Mr Nygard’s recusal application.
Her ruling said: “The court finds that the fifth respondent (Mr Nygard) has not proved there was evidence of bias or apparent bias towards the fifth respondent and therefore refuses the application for recusal.”
“The application by the fifth respondent is unmeritorious,” the judge stressed.
“The court finds the allegation of bias by (Mr Nygard) scandalous and undermines the administration of justice. It is scandalous to allege that the court collaborated with the applicant (Save The Bays) to have the fifth respondent appear in court to enable them to effect service on the fifth respondent. The record in the proceedings on June 19, 2015, which is attached to the affidavit of Keod Smith, would show that the fifth respondent was released after discussion with counsel and the court with respect to convenient dates for the hearing of the notice of motion.”
“Counsel for (Mr Nygard) was invited to consult his client with respect to his schedule. After this was done, counsel for the applicant and counsel for the fifth respondent agreed dates for the hearing of the notice of motion and for a visit to the site in question.”
On June 18, 2015, Justice Bain had ordered that Mr Nygard be present in court the next day for the committal hearing against him regarding the alleged October 2014 dredging at his Lyford Cay property and to determine whether or not he was in breach of an injunction against him.
Mr Nygard was served with the second motion outside the courtroom.
In a previous affidavit in support of Justice Bain recusing herself from Mr Nygard’s committal hearings on the grounds of bias, Mr Nygard’s former attorney Keod Smith stated that both he and his client took the position that Mr Nygard was ordered to remain in court that day “for the sole purpose of affording and/or facilitating” Fred Smith, QC, in serving the fashion designer with the legal notice, notwithstanding Save The Bay’s (STB) alleged numerous failed attempts to previously serve Mr Nygard with the documents.
In that affidavit, dated September 17, 2015, Keod Smith also claimed that neither Justice Bain, Fred Smith, nor “any of its servants, agents or operatives” indicated to Mr Nygard or his lawyer that STB “had or was about to commence another contempt application.”
STB, formerly known as the Coalition to Save Clifton Bay, refuted Mr Nygard’s recusal application, arguing that the application was “transparently calculated to delay the progress of the first committal application” against Mr Nygard.
STB’s 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 Lyford Cay resident 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 has alleged that Mr Nygard achieved this without the necessary permits and approvals, claims that have been denied by the fashion designer.
That comes against the backdrop of Justice Bain’s ruling in 2013 that until the conclusion of judicial review proceedings challenging the legality of the construction of a groyne and the dredging of the seabed off Nygard Cay, neither activity could continue. However, since then, STB has submitted photographic evidence in court purporting that the exact opposite has happened.
Justice Bain said the delay in the substantive hearing of the judicial review could not be blamed on her, as “the substantive application for judicial review has not yet been heard because of the preliminary applications made by the respondents.”
“It cannot be said that the court has not properly managed this case. The nature of the preliminary applications, especially for recusal, have to be disposed of before hearing the substantive application,” the judge added.