The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

A JUDGE has stayed contempt proceedings against a lawyer who had accused her of bias pending the outcome of his application before the Court of Appeal.

Justice Rhonda Bain on Friday scheduled a status hearing for July 13 concerning the outcome of Keod Smith’s extension of time application to the appellate court due to be heard on June 22.

Smith, former attorney for controversial fashion designer Peter Nygard and a previous Progressive Liberal Party member of parliament, had appeared earlier when his lawyer, Elliot Lockhart, QC, sought a stay on the proceedings pending the outcome of their appeal against rulings made by the court last December and in March.

“We’re asking for a stay of the proceedings pursuant to sections 16 (3) of the Supreme Court Act pending the determination of appeals by the sixth respondent and Mr (Derek) Ryan for leave to extend the time by which to appeal,” Mr Lockhart told the judge.

In January 2014, Smith had filed a series of affidavits claiming that Justice Bain should recuse herself from a judicial review proceeding as she had made a series of decisions based on her affiliation with the Free National Movement (FNM).

Ten months later, Smith attempted to withdraw the applications for the recusal, notwithstanding a section of an affidavit filed in January, entitled “Justice Bain, who is she?” He argued the judge once worked under former Prime Minister Hubert Ingraham, that she was appointed to a high-ranking position in the Attorney General’s Office because of her ties to the FNM and that her two sons were fathered by a person he claims is a close friend and advisor of Mr Ingraham.

Smith claimed that Justice Bain had made several rulings in favour of Fred Smith, QC, who in the past had been affiliated with the FNM, and “can only be explained as coming about as a result of her bias”.

Justice Bain, in December, found Keod Smith guilty of contempt for the “scandalising” affidavits he filed which undermined the integrity of the judge and the judicial system. His then lawyer, Derek Ryan, was also informed that he "cannot escape liability” for the “scandalising” affidavits.

At a contempt hearing a month later, Mr Lockhart appeared for Keod Smith and expressed his reservations about the proceedings and argued that the court had already arrived at a determination without first considering any evidence to refute the pair being guilty of contempt.

The judge ruled, after a hearing in March, that the court would proceed with notice against Smith to show cause why he should not be committed to prison.

In Friday’s proceedings, when an application for a stay was made, Mr Lockhart said the referenced section of the Supreme Court Act highlighted the judge’s power to stay any proceedings and “we submit this is a discretionary and unfettered power”.

He also noted that his clients “have an unrestricted right of appeal” and that this matter is “dealing with the liberty of the subjects”.

“It is submitted the applicants have arguable grounds of appeals with some prospective success,” the lawyer added.

Fred Smith took issue with the application and said the contempt proceedings had already put a hold on the judicial review proceedings brought by the Coalition to Protect Clifton Bay. He said that at a previous hearing, “it was agreed that no further deliberations or any applications be heard until the contempt proceedings conclude.”

He said the application to the appellate court was not only out of time but it was also “premature in that today is for him to show cause why he should not be committed to prison”.

“No order has been made depriving the sixth respondent or Ryan of their liberty,” he emphasised.

Mr Lockhart, in response, said he did not know why Fred Smith took issue with the application or argued that the counsel involved in the judicial review should have been notified of the new development when “an application has been foreshadowed by the Attorney General to either proceed or transfer the matter to another court”.

Justice Bain said no application had been made. Mr Lockhart said that the matter had been foreshadowed.

Justice Bain, having heard both submissions, ordered a stay on the proceedings until the outcome of the application to the appellate court.

Justice Bain is presiding over the judicial review filed by the Coalition to Protect Clifton Bay, which is challenging an application by Mr Nygard to further develop his imposing Mayan-themed development in Lyford Cay and gain a lease for Crown land reclaimed from the sea without official approval.

The coalition claims that over the last 30 years, Nygard Cay has nearly doubled in size as a result of construction works undertaken without the appropriate permits and in a manner that had caused significant damage to the surrounding environment of Clifton Bay.