The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

A Supreme Court judge yesterday ordered the “immediate arrest” of Canadian fashion mogul Peter Nygard for failing to appear on three occasions to be sentenced for breaching a court order prohibiting him from engaging in any illegal dredging near his Lyford Cay home.

Justice Cheryl Grant-Thompson issued the bench warrant after saying she has “zero tolerance” for the Lyford Cay resident failing to honour her orders for him to appear in court for his own sentencing hearings two weeks ago, last week week, and again yesterday.She also ordered Nygard will have to show cause for why he should not be committed to prison for failing to show in court on those occasions, as she said the fashion designer was “duly informed” of the orders she made last week.

She requested Nygard’s attorney Keod Smith to appear in court on February 7 to explain why he did not appear for yesterday’s proceedings, despite placing himself on the record as Nygard’s attorney during a hearing a week ago and not formally withdrawing since.

Justice Grant-Thompson’s ruling came a week after she ordered Nygard to appear in court and explain why he failed to appear on two previous occasions at the time to be sentenced for dredging the sea bed near Nygard Cay between March and April 2015, and again in October of 2016, despite a June 2013 injunction prohibiting him from doing so.

Last year, retired Justice Rhonda Bain convicted and fined Nygard $50,000 for breaching her July 13, 2013 injunction prohibiting him from engaging in dredging activities at his Simms Point/Nygard Cay property. It was alleged that Nygard violated the injunction in December 2014.

If the fine was not paid by March 21, 2017, Nygard faced 14 days in prison. He was further ordered to remove the excavated sand and return it to Jaws Beach by April 7, 2017 or face an additional $50,000 fine and a $1,000 fine for each day that order is not adhered to.

Nygard paid the fine before the specified deadline, but has since appealed that ruling.

In July of last year, former Justice Bain found the 78-year-old to be in contempt of court breaching her July 2013 injunction—once between March and April 2015 and again in October of 2016.

Then, in an order that was made on June 29, 2018 and filed on July 23 of that year, retired Justice Bain ordered Nygard to be present before Justice Indra Charles in September 2018 for the purposes of concluding his mitigation and sentencing hearing.

Nygard appeared on September 28 for the mitigation and sentencing hearing, but for various reasons, including a recusal application against Justice Charles, those proceedings were again adjourned.

Via an order filed on October 9, 2018, Justice Charles ordered Nygard to appear in court on January 17 to hear the recusal application, as well as to conclude the mitigation and sentencing proceedings.

Nygard did not appear on January 17, however. Justice Charles subsequently adjourned those proceedings and directed that the mitigation and sentencing proceedings be heard before Justice Grant-Thompson on January 21.

Justice Charles also recused herself; not as a result of any successful recusal application by Nygard, but of her own volition.

When the matter commenced last Monday, however, Nygard was not in nor around the court precincts – only his attorneys Keod Smith and Melissa Hall. The matter was adjourned to yesterday’s date, with Justice Grant-Thompson giving specific orders for Nygard to be present and explain himself in court over his failure to appear.

Yesterday however, neither Nygard nor Keod Smith were present in court when the bailiff called their names.

Nygard’s absence, however, came notwithstanding a letter dated January 24 from Carlton Martin, Nygard’s other attorney, that indicated that the designer would be in court in a “timely manner” on yesterday’s date. Thus, Mr Martin indicated in court yesterday that it was always his expectation that Nygard would be in court. 

However, Mr Martin indicated that late on Sunday, he was informed that Nygard would not be appearing in court for medical/health reasons, and that a letter would be forthcoming from his doctors. An affidavit from Dr Lynwood Brown was subsequently brought to the court’s attention, which according to Mr Martin was comprehensive in addressing Nygard’s reasons for not appearing.

And somewhere in that affidavit was the suggestion that Nygard was not able to travel by air to Nassau to attend last week’s and yesterday’s proceedings for health concerns inclusive of dizziness and soreness. 

However, Justice Grant-Thompson noted that had yesterday’s proceedings been that of a criminal nature, Dr Brown’s affidavit— which Mr Martin himself said he saw for the first time yesterday morning – would be regarded as “triple hearsay” given that Dr Brown did not examine Nygard himself, but rather spoke with other doctors who dealt with Nygard.

Nonetheless, Mr Martin asserted that Nygard was not playing games with the court, and that conclusions should not be made “lightly” concerning his client’s health. He thus asked the court to give Dr Brown, and Nygard by extension, the benefit of the doubt concerning their claims.

In response, however, Fred Smith, QC, asserted that Dr Brown’s affidavit doesn’t refer to Nygard as being in a medical state of crisis, but merely suggest that he is undergoing pain treatment.

Mr Smith further noted that Dr Brown’s affidavit shows that Nygard was traveling via airplane everyday last week, and thus asserted that Nygard ought to have been able to travel to Nassau to be present for his sentencing.

Mr Smith further noted that since Justice Bain ordered the mitigation and sentencing, which he said is a “simple, one-step process”, there have been a “multitude” of new applications from Nygard’s camp, which only serve as a “repeat performance” of years of “expense, obfuscation, obstruction and delays” by that side.

Mr Smith also noted that since the hearings began before Justice Charles, there have been a number of changes in Nygard’s attorneys that have caused “untold inconvenience” to the court and his legal team, and further accused Mr Martin and Keod Smith of playing “musical chairs” in their representation of the Lyford Cay mogul.

“…At some stage the authority of this court has to be respected,” Mr Smith asserted, adding that Nygard should be made to see that he is “not privileged” and thus above the law.

Justice Grant-Thompson’s ruling stems from Nygard’s ongoing battle with Save The Bays over allegations the construction/development activities at his Lyford Cay home have led to a substantial growth of the property.

The group claims Nygard has almost doubled the size of his property, from 3.25 acres to 6.1 acres since he acquired it in 1984, by allegedly reclaiming Crown land from the sea.