NASSAU, BAHAMAS — The Court of Appeal has denied Canadian fashion mogul Peter Nygard additional time to appeal a contempt order for breaching a Supreme Court injunction.
In November 2019, Justice Ruth Bowe-Darville had sentenced Nygard to 90 days’ imprisonment and fined him $150,000 for breaching an injunction order granted in February of that year by Justice Keith Thompson. The fine was to be paid within seven days of the ruling. Failing to turn himself over to police or failure to pay the fine would have resulted in an additional 30 days in prison and a $5,000 fine for each day the fine was unpaid.
Bowe-Darville had imposed the sentence in the fashion mogul’s absence as he had failed to appear for the hearing.
Nygard had been found in contempt for breaching an injunction that prevented him from publishing emails that were allegedly stolen from environmental group Save The Bays.
Attorneys for Save The Bays had claimed that a number of emails containing client/attorney information were stolen from law firm Callenders & Co, via some unknown means, but were later exhibited in an affidavit by Keod Smith, one of Nygard’s attorneys.
An injunction had been granted preventing Nygard and Smith from perusing, publishing or disseminating those correspondences.
However, Nygard’s US attorney subsequently tried to publish the emails in court proceedings in New York.
Nygard subsequently sought an extension of time within in which to appeal the contempt order of the court.
In a ruling delivered by Justice Jon Isaacs, the Court of Appeal refused leave to appeal out of time and dismissed Nygard’s contempt order appeal. The appellate court affirmed the conviction and sentence with costs to the respondents — Fred Smith, QC; the Coalition to Protect Clifton Bay; and the Callenders & Co law firm.
The appellate court ruled: “Where the action comprising the contempt is clear and unexplained, the court is entitled to move directly to impose such punishment on the contemnor as the contempt merits.
“In the premises, there was no need for the judge to wait before proceeding to impose sentence on the appellant for his failure to appear. The appellant had been prohibited from using the correspondence by the Thompson injunction and he could not escape its effect, having submitted to the jurisdiction of the Bahamian courts when he entered an unconditional appearance to the proceedings, by publishing the impugned documents outside the jurisdiction.
“There is no basis upon which we should interfere with the discretion exercised by the judge in the circumstances of this case when she found that the appellant had committed a contempt of court. Moreover, the sentence imposed by the judge is, in our view, commensurate with the contempt proved.”
The appellate court also found that no complaint could be made that Bowe-Darville had failed to afford Nygard an opportunity to make submissions in mitigation of any sentence she was minded to impose.
“The matter had been adjourned for a period of almost a month for that purpose,” the court noted.
“The appellant failed to avail himself of that opportunity but instead invested his time in an effort to dislodge. There is no merit in this ground.”
The court continued: “Notices of the proposed committal proceedings were served on his local attorneys, his Canadian attorneys and his New York attorneys.”
It added: “There was no basis, therefore, for the allegation that the appellant had not been properly served with notice of the committal proceedings or with the notice of the sentencing and mitigation hearing.
“In relation to the sentencing stage of the proceedings, no complaint of a lack of notice may be raised since Mr Barry Sawyer was present albeit not participating in the committal hearing before the judge, and his firm was on the record as the attorneys for the appellant at that time.
“Additionally, the appellant was deemed to have been served pursuant to the leave given the terms for substituted service and the fact that his lawyers in The Bahamas, Canada and the United States had been given notice.”
