Public purse to pay for lost extradition battle

The Grand Court has ordered that money from the public purse be used to pay the legal fees of a man who successfully fended off a multi-year extradition battle to the United States.

Iain Nigel MacKellar, 62, is wanted in the state of Texas for 12 counts of fraud-related charges, which stem from allegations that he and others shipped counterfeit flea-and-tick powder products into the US. He maintained that the products were original, but were improperly packaged for the overseas market.

In September 2018, MacKellar lost the first round of his extradition battle in the Summary Court, after Magistrate Angelyn Hernandez ruled in favour of the prosecution and transmitted the matter to the Office of the Governor for execution.

MacKellar appealed Hernandez’s decision before Dame Linda Dobbs in the Grand Court and in March this year, the judge discharged the extradition order and overturned the lower court’s ruling on the basis that it would be “oppressive” to extradite him to the US because of his “serious and life-threatening illness”.

MacKellar then applied to the court for costs, claiming the conduct of the US government, and the way in which the multiple court hearings proceeded in Cayman, resulted in an increase in his legal costs.

Although Crown prosecutor Toyin Salako accepted it was customary for the successful party of an appeal to be awarded costs, she requested that those costs either be capped or, at the very least, reduced.

During the hearing, she stated that “it is important to consider the public purse and the fact that it is the Cayman Islands’ public purse and not that of the United States of America. There is a limited budget in the Cayman Islands. The costs should be capped to legal aid rates therefore.”

Although the judgment did not say what the legal aid rates would reflect, it did state that if the costs were capped at that level, it could see MacKellar being awarded a lesser sum than if they had not been capped.

The governor of the Cayman Islands, who was listed as a second respondent in the matter, was also seeking costs.

The court declined to award the Governor’s Office the costs it sought and also declined to cap the amount of rates at legal aid standards.

“The Court, it is agreed, clearly has the power to make an order for costs in the Appellant’s favour,” reads the judgment. “Those costs will come from the public purse.”

According to the judgment, “The first respondent is ordered to pay 65% of the Appellant’s costs here and in the court below.”

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