Friday, October 11, 2019
By NICO SCAVELLA
Tribune Staff Reporter
PETER Nygard was convicted of contempt of court yesterday for breaching an injunction preventing him from publishing emails that were stolen from environmental group Save The Bays.
The Lyford Cay fashion mogul now has just 14 days to file written submissions on why Justice Ruth Bowe-Darville should not impose a custodial sentence on him for the breach.
Nygard is ordered to be personally present on November 14 for the mitigation and sentencing hearing. He is also ordered to pay the costs of the committal proceedings, which were launched by STB.
Previously, lead attorney for STB, Fred Smith, QC, said a number of emails containing client/attorney information were stolen from his law firm, Callenders & Co, via some unknown means.
However, they were later exhibited in an affidavit by Keod Smith, one of Nygard’s attorneys, which was in support of various applications by Nygard to set aside the orders Justice Cheryl Grant-Thompson had made concerning the billionaire’s other contempt of court convictions and to be used in his own mitigation and sentencing hearing.
STB, via its attorneys Harry B Sands, Lobosky and Co, consequently launched a new action before Justice Keith Thompson in pursuit of an injunction that would prevent Nygard and Keod Smith from perusing, publishing, or disseminating those correspondences.
Justice Thompson granted the injunction in February.
Subsequently however, one of Nygard’s attorneys in New York contacted Fred Smith and informed him that he had obtained some documents that appeared to have come from his file. Fred Smith subsequently requested that Nygard’s lawyer send him copies of those documents and that he not distribute them.
Nonetheless, Nygard’s New York-based attorneys wrote to a judge in that city, requesting a pre-trial conference because they wanted to amend their claims based on those very same documents; they wanted to use the documents in the New York proceedings.
Meanwhile, STB was unable to go back before Justice Thompson on the matter because he was busy writing a decision on whether or not he would recuse himself from the matter pursuant to Nygard’s and Keod Smith’s recusal application.
STB ended up appearing before Justice Bowe-Darville, and applied for leave to commit Nygard to prison for breaching the terms of Justice Thompson’s injunction by allowing his New York lawyers, whom STB asserts are his “servants and agents”, to peruse and attempt to publish those documents in the New York proceedings.
Yesterday’s proceedings before Justice Bowe-Darville are the latest in Nygard’s various ongoing court battles with STB.
In March, Fred Smith called on Justice Grant-Thompson to jail Nygard for two years for failing to appear in court to attend his own sentencing for breaching a court order prohibiting him from engaging in any illegal dredging near his Lyford Cay home.
Fred Smith’s comments at the time came during proceedings that marked the fourth time Nygard had failed to attend his own sentencing hearings as ordered by the court.
At the time, Nygard was ordered to show cause why he should not be cited and committed to prison for contempt for failing to show up in court to be sentenced for dredging the sea bed near his Lyford Cay/Simms Point home between March and April 2015, and again in October of 2016, despite a June 2013 injunction barring him from doing so.
On January 29, Justice Grant-Thompson ordered Nygard’s “immediate arrest” for his failure to appear on three occasions up to that point to be sentenced for breaching former Justice Rhonda Bain’s order prohibiting him from engaging in any illegal dredging near his Lyford Cay home. Justice Grant-Thompson issued the bench warrant after saying she has “zero tolerance” for the Lyford Cay resident failing to honour her orders for him to appear in court for his own sentencing hearings.
At the time, she also ordered that Mr Nygard, 77, would have to show cause for why he should not be committed to prison for failing to show in court on those occasions.
Nygard subsequently appealed Justice Grant-Thompson’s order, and is further seeking an order from the appellate court that all matters 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 January 28, concerning the infringement of his fundamental rights to both freedom of movement and detention.
He further asserts that Justice Grant-Thompson erred 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.
Meanwhile, the appellate court recently struck out Nygard’s appeal of his contempt of court conviction for breaching retired Justice Rhonda Bain’s order prohibiting him from engaging in any illegal dredging near his Lyford Cay home.
In July of last year, the judge found Nygard guilty for the third time for breaching her June 2013 order prohibiting him from engaging in any illegal dredging near his Simms Point/Nygard Cay property.
That came just over a year after Justice Bain convicted and fined Nygard $50,000 for breaching her injunction sometime 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.
Nygard, as of October 2, filed for condition leave to petition the London-based Privy Council in a bid to have that tribunal set aside the Court of Appeal’s decision to effectively affirm his convictions for dredging the sea bed near Nygard Cay between March and April 2015, and again in October of 2016, despite Justice Bain’s injunction.