Nygard’s asks Court of Appeal to overturn Contempt Issue as he fights back against Bacon’s activities at Lyford Cay
By E. Williams
(Monday October 22nd Nassau, Bahamas)Attorneys for Peter Nygard, the international jet setting fashion czar are going to the Bahamas Court of Appeal to squash a decision by Supreme Court Justice Stephen Isaacs for holding Nygard to be in contempt of court for allegedly breaching an undertaking which Nygard’s lawyers say was never given in the lower court.
The matter revolves around Nygard’s relentless and dogged pursuit for justice against controversial Hedge Fund manipulator, Louis Bacon, over an Easement or right of way which runs through Bacon’s property and provides deeded access to Nygard’s estate.
Supreme Court Justice Stephen Isaacs said that he found Mr. Nygard had breached an undertaking to “preserve the status quo” or not to deal with hindrances on the disputed Easement or right of way that Mr. Bacon is alleged to have caused as their civil matter heads into trial.
Attorney Brian Moree QC of the firm McKinney Bancroft & Hughes filed the Appeal on behalf of Nygard on Thursday October 18th 2012 after procuring a stay of the Order of Justice Isaacs by which Nygard is to pay a $50,000 fine as well as refund Bacon the costs for restoring a number of controversial infrastructure put along the Easement by Bacon, including spy cameras, speed bumps, verges and signage ; that Bacon had placed along the Easement . Bacon is expected to be represented by the law firm of Graham Thompson & Co, which is headed by Attorney Sean McWeeney QC.
Mr. Smith asserted in the matter before the Lower Court that the so called undertaking that Bacon’s lawyers were relying on to ground their contempt complaint, had never been given. Further, he also argued that as what Bacon was relying on was ambiguous at best, Bacon’s case for a finding of contempt should fail seeing that fundamentally, the terms of the alleged undertaking could not be proved at the required standard of beyond reasonable doubt.
Mr. Moree will argue before the Appeal Court that Justice Issacs erred in dismissing these arguments, and with other points of law, seek to have the contempt finding against Nygard set aside on the following grounds:-
“1. That the learned Judge erred in law and in fact in holding that there was an enforceable and clear undertaking given on behalf of the Plaintiff at the hearing on the 13thJune, 2012 "...to preserve the status quo…" pending the hearing of the extant interlocutory applications. The learned Judge ought to have found that on the admissible evidence before the Court there were no statements made by Counsel (Keod Smith) for the Plaintiff at the hearing of the 13thJune, 2012 which could properly be construed as constituting a "firm conviction" that an undertaking was being given "...to preserve the status quo…" as alleged by Counsel for the First Defendant and that when considering all the admissible evidence in context the statements relied on as constituting the alleged undertaking were in fact ambiguous and imprecise and incapable of giving rise to a binding obligation.
2. Alternatively, in so far as a binding undertaking was given by Counsel for the Plaintiff at the hearing of the 13thJune, 2012, its terms and scope were restricted to the issue of the signage and did not include the acts complained of in paragraphs (2), (3), (4) and (5) of the Notice of Motion filed on the August, 2012 on behalf of the First Defendant. Accordingly, the learned Judge erred in finding the Plaintiff guilty of contempt by carrying out such acts as alleged by the First Defendant.
3. In finding the Plaintiff guilty of contempt the learned Judge was required to hold that the precise terms of the undertaking had been proved by the First Defendant beyond a reasonable doubt. Such a holding by the learned Judge, albeit by implication and not expressed, was wholly inconsistent with the admissible evidence before the court and the exchanges between Counsel and the learned Judge. The learned Judge should have found that:
(i) it was unclear as to whether an undertaking was given at all, as opposed to merely being discussed, and
(ii) if given, the precise scope and terms of the undertaking lacked the clarity and certainty to be an enforceable undertaking.
4. The learned Judge erred in drawing the inference from the email of the 13thJune, 2012 and the letter of the 10thJuly, 2012 that the Plaintiff "...was made aware of the terms of the undertaking given to the court on his behalf to maintain and preserve the status quo until 4 September, 2012." Infact, the email and letter do not in any way address the issue of whether the Plaintiff’s Counsel told the Plaintiff of the terms and scope of the alleged undertaking which the First Defendant claims was given to the Court.
5. The learned Judge erred in finding that the Plaintiff had notice of the terms of the undertaking (including its terms and scope) purportedly given by his Counsel. That finding is against the weight of the admissible evidence which establishes that the discussion of the undertaking and the court order during the hearing on the 13thJune, 2012 resulted in a lack of clarity and certainty surrounding the undertaking.
6. In considering whether or not it was clear beyond a reasonable doubt that the Plaintiff had breached an enforceable undertaking given on his behalf, the learned Judge erred in failing to apply and/or follow the following established general principles:
(i) there must be clarity and certainty in relation to what was required by an undertaking;
(ii) where there is a bona fide dispute as to whether an undertaking has been given, the fact that neither the existence nor the terms of the undertaking has been recorded in writing militates against an undertaking having been given;
(iii) where the terms of an undertaking could equally well be interpreted as having a narrow scope or a wide scope, it is the narrower scope which must prevail;
(iv) where two interpretations of an undertaking are equally convincing, the less stringent one should prevail; and
(v) where an undertaking can fairly have more than one meaning, it should be accorded the meaning which is less onerous.
7. The learned Judge erred in law in considering and relying in part on the Transcript of the hearing on the 13thJune, 2012 when determining whether an undertaking was given and if so, the terms and scope of the undertaking in that the Transcript:
(i) had not been authenticated as required by section 77(8) of the Supreme Court Act, 1996;
(ii) was a "ROUGH" copy in draft;
(iii)had not been properly adduced into evidence through an Affidavit which had been duly served on the Plaintiff prior to the hearing on the 17thSeptember, 2012 in accordance with the requirements of Order 52 rule 3(3) of the Rules of the Supreme Court of the Commonwealth of the Bahamas.
8. The learned Judge erred in law in failing to apply and/or follow the established general principles set out below when considering the Transcript and specifically when considering the extract from the Transcript set out in paragraph 10 of the Decision:
(i) all relevant passages must be read together and in their overall context;
(ii) the court should not carry out a "detailed semantic analysis" of the words revealed by the transcript; and
(iii)if there is real doubt as to the meaning or effect of what was said, it should be resolved in favour of the person who would be bound.”
The court action emanates from a civil action in the Supreme Court bought by Mr. Nygard against Mr. Bacon for what Mr. Nygard says is Mr. Bacon’s interference with Mr. Nygard’s access to his property at Nygard Cay along a deeded easement over Bacon’s $30 Million Point House estate as well as a public road reservation not belonging to Bacon but which he has been clandestinely attempting to commandeer since 2005. Mr. Nygard has reportedly owned Nygard Cay more than 20 years before Mr. Bacon purchased Point House and properties to the east of it.
Prior to Justice Isaacs being moved on the contempt issue, he had given directions on both sides being readied for trial on this action which is scheduled for February 2013.
Mr. Nygard is reportedly also pursuing criminal prosecution against Mr. Bacon and several other persons for certain actions which Mr. Nygard claims is a part of a conspiracy by Bacon and these other persons to extort his property from him and drive him out of The Bahamas by interfering with his sole land access roadway to his Nygard Cay as well as to tarnish his name and company’s brand name by perpetrating untruths about him.