By LAMECH JOHNSON
Tribune Staff Reporter
PETER Nygard’s applications for leave to appeal and stay a visit to his Lyford Cay property will now be heard on Friday in the Supreme Court.
Elliot Lockhart, QC, had indicated in a hearing last week of his intention to file a motion for leave to appeal and stay Justice Rhonda Bain’s order that a site visit to Nygard Cay was necessary to determine whether the Canadian fashion designer had illegally increased the size of his property.
Mr Nygard’s lawyer had also said he would file a motion on his vocal request 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 Save The Bay’s (STB) case.
Justice Bain had given Mr Lockhart until Friday, September 23 at 4pm to file his motions.
When the matter was called yesterday afternoon, Mr Lockhart said the motions were filed but the filing was late.
“We’ve filed two motions, both filed out of time which I take responsibility for,” Mr Lockhart said, attributing the lateness to a “medical issue.”
The motion for a leave to appeal and a stay of the site visit was filed on Monday, September 26.
The applications for a subpoena of Mr Major, Mr Zonicle and the cross-examination of Mr Bacon, were filed and served only yesterday.
Mr Lockhart wished to be heard on the latter applications.
Dawson Malone, who appeared as one of five lawyers for STB, noted that directions had been given by the court, but they had not been complied with.
“I don’t doubt that Mr Lockhart had a conversation with Mr (Fred) Smith but I’m not instructed with regards to that conversation,” Mr Malone said.
“I cannot reasonably deal with an affidavit that I’ve not seen,” Mr Malone stressed.
Mr Lockhart said the objection “is not advantageous to the progress of this matter.”
“You allege contempt of court but seek to exclude evidence? We seek to prove that the fifth respondent, Peter Nygard, is not guilty of contempt and they are seeking to shut out evidence in support of his defence? I’ve never seen that happen before,” Mr Nygard’s lawyer said.
“It is collusive that Peter Nygard is not guilty of contempt and we intend to prove that by cross-examining Michael Major and Charles Zonicle,” Mr Lockhart added.
Mr Lockhart acknowledged that the documents were filed and served past the specified time, but noted that even the courts have been late with judgments they initially said would be delivered within a specific time.
“We are all ministers of justice doing the best that we can. Where is the prejudice to them? He has not said it. I made the motion on my feet last week. How can he now say he’s not ready or that he’s prejudiced? You’re serious about these judicial review proceedings or no? You’re serious about allegations that Peter Nygard is guilty of contempt or no?” Mr Lockhart asked.
He also said that Mr Bacon should be cross-examined on his affidavit.
Mr Malone contended that the fifth respondent’s continued disregard for directions amounted to trial by ambush.
Justice Bain acknowledged that the motions were filed late, but ruled that they would be jointly heard on Friday at noon.
“I will not accept any further filings by you, Mr Lockhart,” the judge added.
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, denied 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.
Damian Gomez, QC and Khrisna Higgins will appear for Mr Nygard in the applications to be heard on Friday.
Romauld Ferreira, Martin Lundy II, Crispin Hall and Adrian Gibson appeared with Mr Malone.