By RICARDO WELLS
Tribune Staff Reporter
THE Court of Appeal struck down an appeal application yesterday in the contempt of court case for Canadian fashion mogul Peter Nygard, ultimately instructing his attorneys to return to the Supreme Court to have their motion to delay sentencing and pursue an appeal.
The decision was handed down by the court just before 2pm yesterday, following lengthy submissions by attorneys Fred Smith, QC, and Keod Smith, appearing for Save The Bays and Peter Nygard respectively.
In their verbal ruling yesterday, Court of Appeal judges insisted that live applications for a stay of sentencing and a leave to appeal at the Supreme Court level prevented them from hearing an application for the latter at the Court of Appeal level.
Initially, the judges presented Keod Smith with the options of either withdrawing his application for leave to appeal Supreme Court Justice Rhonda Bain’s contempt conviction of his client, or amend further the various other applications submitted at various court levels by his client’s other attorneys.
Keod Smith declined the offers and persisted with his argument that all of the applications were tendered on the grounds that his client had an issue with the jurisdiction of the Supreme Court levying a sentence in the case.
As such, Keod Smith further argued the issue of jurisdiction trumped any other aspect in the case, a claim he said should ultimately give way to his application in the Court of Appeal to be upheld and validated, as it is the substantive court.
Refusing to relent on the position, the appellate judges struck down his motion to appeal Justice Bain’s conviction prior to sentencing, arguing the status of the case in the lower house made it necessary for an appeal, if it is considered, to be done so at the Supreme Court level.
In their submissions yesterday, the appellate judges ruled that to observe fairness in the matter, they would strike down Keod Smith’s current motion, but allow his application to live on.
The move effectively grants him the opportunity to go back to the Supreme Court, have his submissions for an application for leave to appeal heard, and if approved, come back to the Court of Appeal for the same application.
Mr Nygard’s sentencing was transferred to Justice Cheryl Grant-Thompson earlier this year.
The charges stem from a breach of retired Justice Rhonda Bain’s July 13, 2013 injunction prohibiting him from engaging in dredging activities at his Simms Point/Nygard Cay property.
Justice Bain, in a written ruling last July, convicted Nygard for engaging in dredging activities on the sea bed near Nygard Cay between March and April 2015, and again in October of 2016, despite her June 2013 injunction prohibiting him from doing so.
Justice Bain thus said Nygard’s actions warranted him paying costs on a “full indemnity basis,” and further ordered Nygard to pay costs to include the costs of the mitigation hearing to the applicant in the matter, Save The Bays (STB), on a “solicitor and own client basis”.
Justice Charles inherited execution of the sentencing for the case after Justice Bain retired.