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Hearing closes in Government legal dispute

Michael MacLean

A major legal dispute between the Bermuda Government and a developer over the Hamilton waterfront will be ruled on at a later date after parties completed their submissions yesterday.

Michael MacLean claims that new legislation voiding his agreements with the Corporation of Hamilton to develop the waterfront breached his constitutional right to hold property under Section 13 of the Bermuda Constitution.

His legal team has also submitted that the agreements with the corporation were not properly voided by the Municipalities Amendment Act 2013.

The Government has opposed Mr MacLean’s legal challenge and sought to strike it out as an “abuse of process”. It says Mr MacLean had already accepted the agreements with the city’s former administration had been voided and had therefore embarked on proceedings to pursue damages through an arbitration panel.

The case has attracted attention because Mr MacLean’s 16-page affirmation levels allegations of corruption against Craig Cannonier, the former Premier, Michael Fahy, the Minister of Home Affairs, Mark Pettingill, the former Attorney-General and Steven DeCosta, a businessman, which they strongly deny.

After nearly two days of submissions, which saw a team of between six and eight Government lawyers attend the commercial court, the hearing was closed at about 4pm yesterday with Chief Justice Ian Kawaley saying he would reserve judgment to a later date. He did not specify when the ruling would be given.

Yesterday, Sir Jeffrey Jowell QC, Mr MacLean’s lawyer, argued that his client should be able to pursue constitutional relief for the waterfront agreements.

“In this case we have a bona fide claim, and it looks to be a powerful constitutional claim,” said Sir Jeffrey.

“No individual can barter away the freedoms given to them in the constitution. Constitutional rights should not be waived by any form of election.”

Sir Jeffrey told the court that Mr MacLean had changed tack from the arbitration proceedings and embarked on the constitutional challenge because of the “derisory” sum he would have received.

He also maintained that Mr MacLean’s decision to initially proceed with arbitration should not bar him from now challenging the legislation that voided the agreements with the city as unconstitutional.

Chief Justice Kawaley said: “There is no doubt that what happened to your client is as dramatic an interference as you can possibly imagine. That they would be distressed by consequence is entirely understandable.”

Government lawyer Monica Carrs-Frisk had previously argued that Mr MacLean had elected to pursue the arbitration proceedings on the understanding that the agreements with the corporation had been voided.

She also submitted that significant expense had gone into setting up the arbitration panel — the first of its kind in Bermuda — and a hearing date of July 6 had been scheduled before Mr MacLean’s “U-turn”.