By RICARDO WELLS
Tribune Staff Reporter
THE sentencing of Canadian fashion mogul Peter Nygard on contempt charges was adjourned on Friday to give his attorneys leave to file a recusal application against Supreme Court Justice Indra Charles.
Nygard, who appeared in court, was set to hear his fate on the charges that 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 Charles inherited execution of the sentencing for the case after Justice Bain retired.
The contempt sentencing was adjourned to January 17.
On Friday, Mr Nygard’s new counsel in the case, the father-son team of Carlton and Rouschard Martin of Martin, Martin & Co, made the court aware of their plans to seek a recusal of Justice Charles.
The attorneys intended to endorse at least one of three recusal applications prepared by several of Nygard’s former attorneys, in part or outright.
One of the applications was drafted by attorney Keod Smith, who Justice Charles has gone on record that she would recuse herself of any case that involved him.
The move was immediately blocked by Save The Bays attorney, Fred Smith QC, who told the court that Keod Smith had no connection to the sentencing portion of the case.
The indication prompted several attempts by Keod Smith to make a case for his perceived inclusion.
Nonetheless, Justice Charles sided with Fred Smith, and ruled that Keod Smith had no association with sentencing.
In doing so, Justice Charles intimated that she would only hear a recusal application in the case if it is filed by Nygard’s new attorneys and done so, “on good grounds.”
To which the Martin team responded indicating that they would do just that.
Additionally, the attorneys also agreed to move forward with their mitigation application, having it serve as recourse if their recusal application proves unsuccessful.
Justice Charles, in accepting the request for time to file the applications, implored lawyers on both sides to understand the need for the case to reach a conclusion.
To that end, she led the two sides in establishing a timeline for several key dates moving forward.
The timeline calls for attorney Martin to have motions related to his recusal and mitigation applications filed by November 1, with Smith having until December 1 to respond; and then Martin having up to December 31 to provide all the other motions.
Additionally, both sides were told by Justice Charles to have their submissions emailed to her court during November.
Justice Rhonda Bain, in a written ruling in 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 Bain's ruling comes just over a year after she 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.
According to Justice Bain’s most recent ruling, the injunction was in force until judgment in the judicial review proceedings or until further order. In March 2015 the judicial review proceedings had not been heard and there was no order discharging the injunction.
Additionally, in earlier rulings Justice Bain noted that the extant judicial review applications had not been heard because of the “numerous” preliminary applications made by the respondents in the matter.
In October 2016 the injunction was still in effect and had not been discharged. However, Justice Bain said STB has produced evidence to show that Nygard authorised both the March/April 2015 and the October 2016 dredging.
“The court is satisfied beyond a reasonable doubt that (Nygard) is in breach of the injunction filed June 14, 2013,” she wrote. “The court holds that (Nygard) is in contempt of court by breaching the Order filed June 14, 2013 by carrying out dredging works on the sea bed located south of Nygard Cay or north of Clifton Bay between March 26, 2015 and April 13, 2015 and between October 10, 2016 and October 17, 2016.”
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.