The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

AN appellate judge has hit out at attorneys who try to rush to get before the court and be heard on supposedly "urgent" applications.

Justice Milton Evans, in a written ruling, scolded certain lawyers for being "delinquent" and then "at the last minute find themselves having to rush to get before the court" in a purported sense of urgency.

He said such situations are not "true emergencies", and typically end up placing the court in the "difficult position of having to deal with time constraints caused by the inaction of parties who fail to take necessary steps in a timely manner".

Justice Evans did not specify which attorneys he meant. However, his statements came as he dismissed Peter Nygard's bid to have two committal proceedings stayed until the conclusion of his appeal of his contempt of court conviction last year for engaging in dredging activities off the coast of his Lyford Cay home in defiance of a court order.

And in doing so, Justice Evans noted Nygard had some three months between the time his stay applications were rejected in the Supreme Court in December of last year, to the time he (via his counsel) appeared before the judge who rejected them on March 29, to approach the Court of Appeal on the matter but "failed to do so".

Additionally, Justice Evans said the hearing of the stay application was ultimately set to be heard by him on April 10 at 10am, but when counsel arrived they indicated the committal applications in question were actually scheduled to be heard before Supreme Court Justice Rhonda Bain one hour later at 11am.

That, Justice Evans said, placed the appellate court in the "difficult position" of having to deal with "time constraints caused by the inaction of parties who fail to take necessary steps in a timely manner".

According to Justice Evans' ruling, Nygard's application to Justice Bain for a stay of the committal proceedings was refused via a ruling handed down on December 12, 2017.

Justice Evans said on March 29 of this year, a "directions hearing" was held before Justice Bain, during which Nygard's attorney agreed to have the trial of the second and third committal applications heard on April 10.

"This means that the appellant had three months between the date of the learned judge's refusal of both the recusal and the stay applications in which to approach this court but failed to do so," Justice Evans noted.

The appellate judge did note that Gia Moxey-Lockhart, Nygard's attorney, was "duly apologetic" for the delay and the "difficulties which may have resulted from it", and that counsel agreed to proceed with the matter.

"However," Justice Evans said, "I make mention of this nonetheless because it is important that the record reflect that true urgencies are not those situations where parties are delinquent and at the last minute find themselves having to rush to get before the court on 'urgent' applications.

"This court does not and cannot condone this type of behaviour and I trust that there will be no further need to address this issue with parties who appear before this court."

Nonetheless, Justice Evans said he "duly heard" submissions from Nygard's attorney and Fred Smith, QC, attorney for the Coalition to Protect Clifton Bay on the stay application, which was filed via summons on April 5.

In the summons, which was supported by the affidavit of Antoine Thompson, Nygard sought a hearing of an application for a stay of both the second and third committal proceedings against him, pending the determination of his appeal of Justice Bain's March 7, 2017 decision.

And on that date, Justice Bain ruled that Nygard was found in contempt of court as a result of his 2014 breaches of an injunction made on June 13, 2013, and filed on June 14, 2013, which prohibited Nygard from carrying out any further dredging works in the seabed southeast of his Simms Point/Nygard Cay property.

Nygard was fined $50,000 for his actions, and Justice Bain said if fine was not paid by March 21, 2017, he would face 14 days in prison. Nygard was further ordered to remove the excavated sand and return it to Jaws Beach by April 7, 2017, or face an additional $50,000 and a $1,000 fine for each day that order is not adhered to.

Nygard paid the fine before the specified deadline, according to his press team, however, via notice dated March 14, 2017, Nygard challenged Justice Bain's ruling and sought to have it and her consequent orders "wholly set aside".

Nygard also sought to have all judicial review matters affecting his interest be listed before a judge other than Justice Bain; and all contempt proceedings affecting himself save for the summons filed on July 18, 2013, and the notion of motion filed on October 27, 2016, be stayed pending the outcome of that appeal.

According to Justice Evans' ruling, Mrs Moxey-Lockhart submitted during the stay application hearing that the "incurable prejudice" that would befall her client if the committal hearings were to proceed prior to the hearing of his appeal was grounded in the issue of Justice Bain's recusal.

Mrs Moxey-Lockhart submitted that the order sought on appeal requiring those matters to be listed before another judge would be rendered useless without the stay being granted at this stage.

Justice Evans said on the face of it, that submission seemed "reasonable in principle". However, he said the "weight" given to those submissions must "inevitably depend on the facts available to support those submissions".

The appellate judge noted after filing the appeal, Nygard filed an amend motion in the Supreme Court on July 12, 2017, in which he sought Justice Bain's recusal from "hearing any matter affecting or touching and concerning the legal interest of Peter Nygard by reason of bias and/or perceived bias of Madam Justice Bain".

Justice Evans also said that via a ruling on December 12, 2017, Justice Bain refused to recuse herself on Nygard's allegations, and further refused to stay judicial review actions JR1, JR2, JR3, JR4, along with the judicial review pending the determination of the present appeal.

According to Justice Evans, Mr Smith submitted at the time the proper approach would be for Nygard to file an appeal against Justice Bain's December 2017 decision. Mr Smith further noted that on December 20, 2017, Nygard filed an application for leave to appeal Justice Bain's decision but has since failed to prosecute it.

Justice Evans further said he was "constrained to agree" with Mr Smith's contention that the effect of the stay application is an effort to "obtain by side-wide that which (Nygard) has so far failed to get by making the proper applications".

Nonetheless, Justice Evans said the appeal currently before the appellate court relates to Justice Bain's March 7, 2017, ruling, and nothing to do with her recusal.

"It is difficult then to conceive of any proper order which can be made on that appeal requiring the matters affecting the interests of the appellant to be listed before a judge other than (Justice Bain)," he said.

"After reviewing this matter, it was clear that there was no incurable prejudice to which the appellant would be subjected if the matters schedule before (Justice Bain) were to proceed prior to the hearing of the appeal before this court.

Justice Evans ultimately made an order refusing Nygard's stay application and dismissing the associated summons. He also ordered that Nygard pay costs to the Coalition. Those costs, Justice Evans said, were certified fit for two counsel and are payable on the ordinary basis.

The aforementioned stems from the Coalition's battle with Nygard over the construction/development activities at his Lyford Cay home, which the Coalition alleges have led to substantial growth of the property.

The group claims Nygard 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 is alleging that Mr Nygard achieved this without the necessary permits and approvals, claims that have been denied by the fashion designer.