MacLean Plans To Launch Case Over Waterfront

March 12, 2018

As a “result of this Government’s refusal to engage in settlement discussions, ADPL have been left with no choice but to launch” a case against the Government “regarding the voiding of the waterfront lease” Michael MacLean of Allied Development Partners said, adding that “a summons will be filed in short order.”

“I wish to make it abundantly clear that at no time have I, on behalf of Allied Development Partners Ltd. [ADPL] received any compensation for the voiding of the waterfront lease,” Mr MacLean said, adding that ADPL’s losses “amount to close to $4 million dollars.”

Allied Development initially signed the 262-year lease with the Corporation of Hamilton in late 2012. The RFP process to award the lease was criticised in an Ombudsman’s report, and the lease was overturned following a vote in Parliament in 2014, and Mr MacLean launched his first round of legal action following that.

File photo of Mr MacLean leaving court

MacLean July 22 2015

Mr MacLean said, “On 15th April, 2014, Former Minister Michael Fahy indicated, by way of written correspondence to my former attorneys, in what amounts to the Government’s acceptance of liability with respect to the voiding of the lease, states, that the Government of Bermuda were aware of the ‘immediate losses as a result of the voiding of the Waterfront Agreements’ and ‘as a show of good faith and to assist in mitigating your client’s immediate losses, we are prepared to make an interim settlement payment reflective of your client’s immediate losses, we are prepared to make an interim settlement payment reflective of your client’s actual expenses to date. Such items could include but are not limited to: 1] Any legal fees incurred 2] Architectural fees 3] Consulting fees. We believe this to be fair start that would allow your client to become ‘whole’ in as far as immediate losses experienced. This offer should not preclude further settlement discussions on an expedited bases and we look forward to further fruitful discussions’.

“For the avoidance of doubt, the Government failed to honour their undertaking, which ADP legitimately relied upon, to cover expenses as stated in the letter from Sen. Fahy. The 15th April 2014 letter, which is a matter of public record [it has been included in court filings] has been attached to this statement [PDF].

Mr MacLean added, ”The waterfront lease and the Par-La-Ville Hotel lease are two separate and distinct matters; however, it has become clear to me that it is the intention of some, as a result of matters beyond my involvement or control, to intertwine the two matters, in what amounts to a carefully orchestrated, targeted attempt to besmirch my character and avoid having to address the constitutionally enshrined compensatory aspect of the voiding of the waterfront lease. I am deeply saddened by the morally wrong and indefensible attempts to besmirch my reputation and character and the great emotional harm and stress that this protracted five-year ordeal has caused to my family.

“Over two years ago, on January 26th 2016, I was arrested in relation to what the police then dubbed a ‘criminal investigation into an allegation of misappropriation of funds amounting to approximately $18 million’. Prior to my arrest, I was in communication with the police and had provided them with various documents and statements in a transparent effort to assist them in their investigation.

“When arrested, I waived my right to legal counsel and voluntary engaged in a 196-minute interview where I provided the police with a full account of everything that occurred to the best of my knowledge in the circumstances. During that interview, the officers described me as a ‘cooperative witness’; since then, more than two years have elapsed and the police have not asked to interview me again nor have they laid any criminal charges against me.

“The police and the Government are now both well aware that Mr. Robert McKellar, of Argyle UAE Ltd, is before the England High Court in relation to funds which were transferred to him for the purposes arranging financing for the Par-La-Ville hotel project. It was revealed in those proceedings that he, Mr. Robert McKellar, used the funds transferred to him, to purchase an Aston martin car, two luxury homes and an engagement ring.

“I personally did not, nor did any entities that I have an interest in, have any knowledge of, or involvement in, Mr. McKellar’s use of the monies on those items. At no stage during those civil proceedings in the U.K, or in any proceedings at all, has it been intimated or alleged that I, Michael MacLean or any entities that I have an interest in, had any involvement, knowledge of, or connection to the use of the funds on those items.

“On July 18th 2017, the date of last year’s general election, in what can only be described as a last-ditch attempt to put the proverbial ‘nail in the coffin’ and ensure that ADPL did not receive compensation for the voiding of the waterfront lease, the former OBA Government filed an application with The Bermuda Supreme Court to strike-out the arbitration proceedings which had been set.

“It has always been the view of ADPL that the Government were never serious about advancing the arbitration proceedings to see to it that the matter could be resolved; indeed, former Minister Fahy conceded in his 15th April 2014 letter to ADPL’s former attorneys that the Government wanted to avoid an arbitration process.

“During the arbitration, the Government claimed that ADPL were only entitled to a nominal sum of $1 for the voiding of the waterfront lease. This ridiculous contention is contrary to the Government’s position stated in their letter of 15th April 2014, where they acknowledged ADPL’s consequential losses and undertook to cover those losses [which to date amount to close to $4 million dollars].

“Having specific regard to the failure of the government to honour their undertaking, which ADPL legitimately relied upon, we remained in an impecunious position and were unable to prosecute the arbitration proceedings.

“On November 17th 2017, the PLP government, represented by the same attorneys as the former OBA administration, continued with the application to strike-out the arbitration. ADPL stated to the court that it did not at that time have the resources to prosecute the arbitration.

File photo of Hamilton at night:

626 Hamilton  generic February 2016

“During that hearing, Chief Justice Kawaley confirmed that any order made, would not, without more, extinguish ADPL’s rights under the outstanding limb of our constitutional application in relation to the voiding of the waterfront lease. In those circumstances, having specific regard to the preservation of the constitutional application, an application for an adjournment was not sought by ADPL and we did not contest the Government’s application.

“The Chief Justice terminated the arbitration pursuant to s. 39[3][a] of the Arbitration Act 1989; however, he declined the government’s request to grant the termination on the basis of prejudice which was available under s. 39[3][b] as he deemed that limb not to have been made out.

“As such, contrary to reports by some who are stating otherwise, the latest ruling of the Supreme Court of Bermuda does not bring finality to the legal debacle as ADPL still have a right to pursue constitutional relief regarding the voiding of the waterfront lease.

“Allied Development Partners Ltd. appreciates that the PLP Government did not cause this debacle, however they were elected to lead and address the issues they inherited. During their time in Opposition they spoke vociferously against the actions of the OBA administration; we invite the public to view the Hansard transcripts of 2nd October 2013 which have been attached to this statement [PDF here].

“ADPL have made several attempts to resolve this matter swiftly and amicably to avoid further expense to the public purse with further litigation; ADPL have sent over six formal pieces of written correspondence to The Government of Bermuda [The Premier, The Attorney General, & The Minister of Home Affairs] in an attempt to arrange a meeting with the purpose of amicably resolving this matter.

“To date, there has been absolutely no response forthcoming regarding the matter despite the Premier and Minister of Home Affairs’ indication to the public that they ‘continue to move the issue forward’ ‘in a way that addresses the legitimate concerns of someone who had a contract voided along with maintaining proper and judicial control over the public purse.’

“As a result of this Government’s refusal to engage in settlement discussions, ADPL have been left with no choice but to launch our constitutional case against The Government of Bermuda regarding the voiding of the waterfront lease. A summons will be filed in short order.”

Supporting documents provided by Mr MacLean: Full statement [PDF] Hansard [PDF] Mr Fahy letter [PDF].

We asked the Government for comment and will update as able.

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