By LAMECH JOHNSON
Tribune Staff Reporter
A JUDGE declared yesterday that a site visit to Lyford Cay was necessary to determine whether one of its residents, Peter Nygard, had illegally increased the size of his property.
Justice Rhonda Bain’s ruling on the matter followed after Mr Nygard, a Canadian fashion designer, gave notice to the Supreme Court that he would not be able to make his property accessible to facilitate the ongoing case. It was a different position from a hearing on August 9 when Gia Moxey, who appeared for Mr Nygard, confirmed to Justice Bain that her client would make himself available the full week of October 3 for the continuation of the case, which included a site visit to Nygard Cay.
Justice Bain, in her written ruling, said: “Even though no application has been made for inspection (all parties agree to the inspection) the court in its inherent jurisdiction, may make an order for inspection.
“The fifth respondent (Peter Nygard) has possession of the property at Nygard Cay which is adjacent to the area, the subject of the purported dredging. In order to determine whether the fifth respondent was in contempt of court and in breach of the order filed on June 13, 2013 it is necessary for the court to inspect the locus in quo (the scene of the event) to determine the extent of the breach. Additionally, in order to determine whether the court should order the relief sought in the judicial review application, it would be necessary to visit the locus in quo to determine the extent of the dredging and other matters alleged in the judicial review.
“The court would be able to have a full inspection of the property including the groyne and the dock and other matters related to the property at Nygard Cay,” the judge added.
Justice Bain acknowledged that Nygard Cay is private property but stressed that the property is now the subject on an action in the Supreme Court, to which Mr Nygard is a party.
The judge relied on a number of legal authorities, including provisions in Article 21 of the Constitution, Section 170 of the Evidence Act and a case authority Goold v Evans & Co 1951 to justify her decision.
She ordered that the ruling be personally served on Mr Nygard with substitute service also being made on Elliot Lockhart, QC.
After Justice Bain gave her ruling, Mr Lockhart applied for leave to appeal the ruling and stay of the proceedings and said if the court wished a formal application, he could do so within 14 days.
Attorney Fred Smith, QC, who appeared for environmental group Save the Bays (STB), strongly objected to the applications, suggesting that Mr Nygard’s lawyer was seeking to “hijack” the progress of the matter.
“This matter will never be heard and that is his intention,” Mr Smith stressed.
Mr Lockhart proceeded to ask that former and present Directors of Physical Planning Michael Major and Charles Zonicle be subpoenaed, as well as hedge fund billionaire Louis Bacon, who is Mr Nygard’s neighbour, to give evidence at the end of STB’s case.
“We would reserve the right to call Mr Louis Bacon for cross-examination on his affidavit filed on November 18, 2015,” Mr Lockhart added.
Mr Smith, in response, suggested that Mr Lockhart’s client was “making a mockery of the process.”
“We’ve appeared several times for direction on this matter. They were asked this already and there was a deadline by which they were to serve notice of which (persons) they wished to cross-examine.
“Quite some time ago, we the applicants had identified whose affidavits we were relying on to prove our case. We’re not relying on the affidavit filed and sworn by Louis Bacon so Mr Bacon is not a prospect to cross-examine on,” Mr Smith stressed.
Mr Lockhart took offence to the accusations laid against his client and stressed to Justice Bain that he and his client “have a right to be heard.”
The judge said their right to be heard was not an issue, but noted that they were given an opportunity to indicate who they would call.
“It is not on the eve of trial of the motion for Mr Nygard to seek to have subpoenas issued,” Mr Smith interjected.
Disregard of court
Mr Smith said this current action is only a further demonstration of Mr Nygard’s apparent disregard for the power of the court, as was the basis of their motion to have him committed for breaching the court’s order notwithstanding an injunction.
He added that consistent with directions given by this court, Mr Nygard filed a list of persons he wished to cross-examine and Mr Bacon’s name was not on it.
Mr Lockhart conceded the latter point.
Mr Smith decried Mr Nygard’s “mockery of the process” and stressed that “there comes a time when he must be made to stop.”
Mr Lockhart’s applications for leave to appeal, a stay and the subpoenas will be heard on Tuesday, September 27.
Justice Bain was asked to recuse herself from committal proceedings involving Mr Nygard through a notice of motion filed in the Supreme Court by his former lawyer on the grounds of bias.
However, in January, Justice Bain said Mr Nygard had not proved there was evidence of bias or apparent bias towards him and found the accusations to be “scandalous”.
The Court of Appeal, in June, affirmed Justice Bain’s rejection of the application in an appeal of the decision by the Lyford Cay resident. A published decision is expected to follow.
At a hearing in 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 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, the Canadian’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 nor Fred Smith 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 it 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 alleging that the opposite has happened.