The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

A Supreme Court judge has given fashion mogul Peter Nygard one last chance to explain himself in court over his failure to appear on two 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 ordered Nygard to appear in court next Monday to be punished 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.

Otherwise, Justice Grant-Thompson said she would rule on attorney Fred Smith’s application to have Nygard show cause why he should not be committed to prison for failing to show up for his own sentencing hearings last week and again yesterday.

Justice Grant-Thompson’s order came after Mr Smith, QC, submitted that given the “torturous history” of Nygard’s legal battles, which has seen him convicted of contempt of court three times for breaching the same court order over a two-year span, something needs to be done to get the Lyford Cay resident to respect the jurisdiction of the court. 

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.

That was the first conviction. 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 on September 7, 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 yesterday’s date.

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 yesterday, however, Nygard was not in nor around the court precincts – only his attorneys Keod Smith and Melissa Hall.

Thus, Fred Smith submitted that with his absence, Nygard is prima facie in contempt of the various orders requiring him to attend court on January 17 and again on yesterday’s date. He consequently asked the judge to issue a notice requiring Nygard to show cause why he should not be committed to prison for failing to honour the court orders mandating his attendance.

Mr Smith further submitted that for the sake of good order, it is incumbent that “respect be maintained for the administration of justice”.

“If Mr Nygard, of his own volition, can choose whether he does or doesn’t appear, and Mr Nygard does not live in this jurisdiction—he periodically visits, how on earth is this court going to get Mr Nygard before it for the purpose of having a mitigation and a sentencing hearing?” Mr Smith asked. “He’ll just never show up. And this court will appear to be impotent.”

In response, however, Keod Smith drew the court’s attention to affidavit evidence before the court that contain exhibits that show how Nygard is undergoing medical treatment in New York that he must undergo until today at the very least. And that evidence, Keod Smith submitted, was before the court from the day Justice Charles recused herself from the matter.

Thus, Nygard’s attorney said it was “baffling” to hear Mr Smith asking the judge for an order to have Nygard show cause why he shouldn’t be committed to prison for his absences, given that the QC knew of his client’s medical issues and the fact that he would not be present.

Keod Smith further submitted that “Mr Nygard did not determine that he would simply disobey the court order.”

“…In the circumstances, we know where Mr Nygard is, we know why he’s not here. And that was known before we came to you today,” Keod Smith told Justice Grant-Thompson.

Justice Bain’s ruling stems from Nygard’s ongoing battle with STB 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.

The matter continues next Monday.