Saturday 22 July 2017

Michael Lowry TD has to foot the legal bill for High Court prosecution challenge

Michael Lowry. Photo: Damien Eagers
Michael Lowry. Photo: Damien Eagers

Tim Healy

Independent TD Michael Lowry will have to foot the legal bill for the four days of a High Court hearing in which he failed to stop his trial on mainly tax related charges.

Last February, Mr Justice Seamus Noonan rejected his judicial review challenge to his trial saying it was based on many “ingenious and even superficially attractive" arguments which were "in truth, devoid of any substance and ultimately built on a foundation of sand”

Mr Lowry, he found, had “conspicuously declined” to engage with the €372,000 transaction of 2002 at the heart of the case.

He also disagreed with Mr Lowry’s argument a 2015 Appeal Commissioners determination of his tax appeal was a “vindication” of him in light of  which continuation of the tax prosecution was oppressive.

The Appeal Commissioners found "clear evidence" Mr Lowry "misappropriated" monies of his company Garuda, the judge said.

The case returned before Mr Justice Noonan Tuesday to deal with the issue of the legal costs of the hearing.

Michael Lowry celebrates after winning the first seat at the Tipperary count centre. Photo: Frank McGrath
Michael Lowry celebrates after winning the first seat at the Tipperary count centre. Photo: Frank McGrath

Patrick Treacy SC, for Mr Lowry, asked there be no order as to costs.

Alternatively, counsel asked the judge too put a permanent stay on on any costs order in the event he does not appeal the High Court decision to the Court of Appeal. Mr Lowry has said previously he intended appealing.

Remy Farrell SC, for the DPP, sought costs.

Awarding costs, Mr Justice Noonan said it was argued by Mr Treacy there should be no order on grounds including that Mr Lowry was not legally aided.

It was argued, the judge said, he faces a criminal trial in the Circuit Court on the tax charges which is expected to last at least a couple of weeks and for which there would be significant other costs.

However, the judge said, the DPP had said that if Mr Lowry was acquitted on the tax charges, he could make an application for his costs then.  Therefore the issue of hardship as a result of having to pay costs did not arise,  he said.

The judge also rejected arguments on behalf of Mr Lowry his position had been vindicated by a Appeals Commissioner who found the TD had no personal tax liability although his company did.

The argument that he might have got his costs before the Appeal Commissioner was not relevant because the legislature had decided the Commissioner had no power to order costs.

The judge further rejected arguments relating to the time factor surrounding the judicial review challenge.

Mr Lowry had a duty to engage with the facts of his complaint and the judge had found he had not done so.   That also had a bearing on the costs issue, the judge said.

In all the circumtances, he would not depart from the normal rule that the loser pays the costs.

He also refused to grant a permanent stay on his costs order.   Although this was a somewhat unusual application, it was not unusual for cases to be settled between parties on the basis of no costs being sought provided there was no appeal.

However, this was not something the court could embark on because that would mean engaging in the quesiton of whether or not an applicant should appeal.

The effect of such an order would also be to deprive the DPP of her costs and negative the order the court already made, he said.

Mr Lowry's trial before the Dublin Circuit Criminal Court is pending.

He faces five charges arising from a 2002 transaction involving a €372,000 payment due to Garuda being diverted to an Isle of Man trust account.

He is charged with filing incorrect income tax returns for the  year 2002 and conniving in alleged delivery by Garuda of incorrect corporation tax returns for the years ending 2002 and 2006.

He is also charged, under the Companies Acts, with wilfully causing a company to fail to keep proper books of account between August 28, 2002, and August 3, 2007.

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