MacLean ordered to pay costs

  • Michael MacLean (File photograph)

    Michael MacLean (File photograph)

A developer has been ordered to pay legal costs after he abandoned an effort to fight the validity of a prosecution over a failed hotel project.

Michael MacLean had asked for a judicial review of the Director of Public Prosecution’s 2018 decision to charge him with a string of offences in connection with the aborted construction of the Par-la-Ville Hotel, in the parking lot north of Queen Elizabeth II Park in Hamilton.

Mr Maclean argued that the Director of Public Prosecutions, Larry Mussenden, considered irrelevant factors when he made the “unreasonable and unlawful” decision to take the matter to court.

Puisne Judge Shade Subair Williams said in a written judgment: “The respondent cannot be faulted for having appeared and partaken in the hearing.

“Thus, the respondent should have their costs, for having successfully resisted the application, even if that was indirectly achieved by a notice of discontinuation.”

The judge, however, said allegations of “mischief” were unsupported.

Mr MacLean was charged in Magistrates’ Court in June 2018 with deceptively and dishonestly obtaining $15,449,858 belonging to Mexico Infrastructure Finance, stealing $13,749,858 from the company and using $13,749,858 of criminal proceeds.

All of the charges against Mr MacLean were dismissed in January 2019 after a judge ruled there was insufficient evidence to take the case to trial. But before the charges were put before the court, Mr MacLean’s lawyer, Charles Richardson, filed for a judicial review of the decision to press charges.

Mr Richardson told the Supreme Court, in a June 22, 2018 hearing, that the charges were brought to ease concerns raised in the House of Assembly and other courts, about a failed loan from MIF intended to support the hotel project.

Mrs Justice Subair Williams’s judgment, delivered on March 23, said: “Mr Richardson further described a wrongful nexus between the Attorney-General’s pursuance of civil recovery proceedings and the decision to charge Mr MacLean.

“He explained that the civil recovery application was viewed dimly by the learned magistrate on account of the absence of an underlying criminal prosecution.

“Mr Richardson explained that the magistrate directed the Crown counsel from the AG’s Chambers to liaise with the DPP’s office to ascertain whether there would likely be a prosecution.”

Rod Attride-Stirling, who appeared for the DPP, said at the hearing there was no direct evidence to suggest the DPP was pressured to bring charges.

He also argued that, while the court did have jurisdiction to hear the complaint as a judicial review, such an approach was only used in extraordinary circumstances.

The hearing was adjourned until June 25, 2018, and Mr Richardson was given time to make further submissions, but none were made.

Mr Richardson confirmed he would not move forward with the judicial review on the day the case was scheduled to return to court.

The DPP later launched an application for costs.

Mrs Justice Subair Williams said that the DPP should be compensated for its involvement in the February 22 hearing and for costs related to the creation of affidavits.

The costs have still to be determined.

Mrs Justice Subair Williams said: “Mr MacLean’s position was that he had been unfairly charged by the DPP’s office, as a result of political pressure to recover and account for the missing MIF loan proceeds.

“He then sought relief, in these proceedings, as a means of avoiding the bringing of these unfair charges.”

She added: “The fact that the application was later agreed to be misconceived or without merit, does not mean that it was gravely improper to commence the application.”

To view the judge’s ruling, click on the PDF link under “Related Media”

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