The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

LYFORD Cay resident Peter Nygard is appealing a judge’s decision to order his “immediate arrest” 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 home.

Nygard, in a notice of appeal motion filed yesterday, is seeking to set aside Justice Cheryl Grant-Thompson’s issuance of a bench warrant over his not honouring her orders for him to appear in court for his own sentencing hearings two weeks ago, last week, and Monday.

Furthermore, Nygard is seeking an order from the appellate court that all matter in the Supreme Court proceed without him “being required or compelled by the court to be present”, and in “due consideration” to an order made in 2018 which he asserts brought the matter to an end.

Nygard is also seeking to have all further proceedings in the action stayed pending the hearing of his constitutional motion, which was filed on Monday, concerning the infringement of his fundamental rights to both freedom of movement and detention.

On Monday, Justice Grant-Thompson issued a bench warrant for Nygard’s immediate arrest after saying she has “zero tolerance” for the Lyford Cay resident’s failure to appear for his own sentencing hearings.

She also ordered that Nygard will have to show cause for why he should not be committed to prison for failing to show up in court on those occasions, as she said the fashion designer was “duly informed” of the orders she had made last week.

Her ruling came a week after she ordered Nygard to appear in court and explain why he had 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.

However, in his notice of appeal filed by Martin, Martin & Co, Nygard asserts that Justice Grant-Thompson erred in both fact and law in treating the contempt proceedings as criminal contempt proceedings, and that she erred in ordering the issuance of a warrant for his arrest, in spite of or at the same time as ordering him to show cause why he shouldn’t be committed to prison.

The 77-year-old further charges that Justice Grant-Thompson erred in law and fact in failing to take into consideration the fact that he had commenced a constitutional action against the other parties in the action save for attorney Keod Smith, which he asserts goes to the “root” of the action in which her order was made.

Nygard also asserts that Justice Grant-Thompson erred in law and in fact in “criticising, failing to give sufficient consideration to or rejecting” the affidavit of local physician Dr Lynwood Brown, which outlined the reasons why Nygard was unable to appear on previous occasions.

According to Dr Brown’s letter, when Nygard arrived in Winnipeg, Canada in the “wee hours of the morning” on Friday of last week, and after having travelled every day for the entire week for medical purposes, he started to feel dizzy and faint, similar to a past occasion when his heart rate was over 130 beats per minute and his blood pressure at 160/110.

Dr Brown thus asserted that Nygard should not travel given his “serious condition”, and further asserted that the air pressure of flying at 30,000 feet to get to The Bahamas could be “fatal” to the 77-year-old. Dr Brown also asserted in his affidavit that Nygard wants to be “respectful of the court” and had indicated that he was prepared to speak “directly to the court by way of video link or other electronic process so as to offer his apology” if the court “was minded” to accept it.

Nygard thus asserts that Justice Grant-Thompson failed to allow or accede to his attorney Carlton Martin’s request to have Dr Brown called and subjected to examination. He also criticises the judge only taking a “cursory look” at Dr Brown’s affidavit. He also asserts that Justice Grant-Thompson was wrong to describe Dr Brown’s affidavit as “triple hearsay evidence”, given that Dr Brown did not examine Nygard himself, but rather compiled his affidavit based on the information he got from the doctors that actually examined him.

Nygard further asserts that Justice Grant-Thompson erred in fact and law in making her orders on Monday when there was “no legal basis” for doing so, and that she failed to take “due note of” and follow the procedure of retired Justice Rhonda Bain in not requiring his attendance at previous hearings.

He also asserts that Justice Grant-Thompson erred in law and fact by failing to take into consideration the fact that the Tomlin Order, made on March 27, 2018 and which represented a settlement reached between himself, the government and environmental advocacy group Save The Bays, brought the proceedings in the current action to an end and that “any and all subsequent proceedings otherwise than as to costs were without jurisdiction on the part of the court”.