Thursday 27 October 2016

Michael Lowry challenges Moriarty Tribunal decision to only award him one-third of legal costs

Tim Healy

Published 10/11/2015 | 16:24

Michael Lowry
Michael Lowry

FORMER communications minister Michael Lowry is challenging a decision by the Moriarty Tribunal to only award him one-third of what it cost him to be legally represented during the inquiry's 14-year tenure.

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He claims he was treated unfairly and was discriminated against compared to the other subject of the tribunal, the late former Taoiseach Charles Haughey, who was awarded 100 per cent of his costs.

The independent Tipperary North TD says his overall bill will run into millions because he had to engage with the tribunal on an almost continuous basis over its 14 years.

The claims came on the opening of Mr Lowry's High Court judicial review application over the October 2013 decision of the tribunal to only award him one-third of his legal costs after it found he failed to fully co-operate with it.

The tribunal is opposing the action.

Niamh Hyland SC, for Mr Lowry, said Mr Lowry and Mr Haughey were the two subjects of the terms of the reference of the tribunal which was set up in 1997 to investigate whether payments were made to the two men while in public office and in circumstances which gave rise to inferences the payments were in connection with office.

In its findings, the tribunal held that in the course of his office, Mr Lowry conferred benefit on businessman Denis O'Brien who had made or facilitated payments to the then communications minister (Lowry) but there was no finding Mr O'Brien had benefited from those payments.

Mr Lowry rejects those findings, counsel said.

In "stark contrast" to what happened with Mr Lowry, the tribunal found that between 1979 and 1996, Mr Haughey obtained benefit of €11 million which in  1998 was 171 times his salary, counsel said.

No criminal charges arose out of this as the tribunal findings have no legal effect and were described by one Supreme Court judge as "sterile" legal findings.

Mr Haughey was charged for obstruction of another tribunal, the McCracken Tribunal, but these charges were never heard as a result of prejudicial comments by a Cabinet Minister.

Ms Hyland argued the Moriarty Tribunal's awarding of only one-third of Mr Lowry's costs was disproportionate particularly having regard to the level of co-operation Mr Lowry provided to it.

For example, Mr Lowry made 31 bank accounts over nine years available to the tribunal which involved a huge amount of work.

He also provided waivers in relation to access to bank accounts of close family members despite a separate  successful legal challenge taken by Mr Haughey over similar efforts to access accounts of his (Haughey's) family.

Mr Lowry was happy not to withdraw those waivers even after being offered the opportunity to do so, counsel said.

Mr Lowry had not brought any legal challenge to the tribunal until this case unlike others, including Mr Haughey and Mr O'Brien, who had brought such challenges.  

This was in circumstances where 70 per cent of the tribunal was devoted to the awarding of the country's first mobile phone licence to ESAT, Mr O'Brien's company.

There was inequality and unfairness by the tribunal in that it failed to apply its own legal principles in making the costs order, counsel said.

There was a most surprising lack of transparency in that the tribunal did not make its rules on costs available until Mr Lowry sought a discovery order from the courts.

The same procedures used for assessing Mr Haughey's right to all of his costs were not applied to Mr Lowry.   Many of the same features of the Haughey case were in Mr Lowry's case and the refusal of the bulk of her client's costs was irrational and unfair.

There was a "gateway" set up by the tribunal for deciding costs but Mr Haughey was never required to go through  that gateway, she said.

The tribunal said Mr Lowry failed to identify one bank account in the Isle of Man and had furnished falsified documents.

However,  counsel said, Mr Lowry did identify the Isle of Man account in 2001 and the waiver he had granted in relation to his accounts covered it and Mr Lowry also believed it was not relevant.

There was no evidence of furnishing false documents, she said.

Mr Lowry was in court for the hearing which continues before Mr Justice John Hedigan.

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