Saturday 15 December 2018

Michael Lowry wins appeal over awarding of Moriarty Tribunal costs

Michael Lowry TD. Picture: Tom Burke
Michael Lowry TD. Picture: Tom Burke

Tim Healy

The Court of Appeal (CoA) has allowed an appeal brought by Michael Lowry over a decision of the Moriarty Tribunal to award him only one-third of his legal costs - which he says runs into millions - over his participation in the tribunal process.

It sent the question of what the amount of those costs should be back to the tribunal for reconsideration.

The three-judge court however dismissed his appeal in relation to a specific ruling which made findings of non-cooperation by him.

The High Court  had dismissed his challenge to the Tribunal  decision  which was based on what it said was  "a litany of falsification and  deception"  in his failure to co-operate with the tribunal which was set up to inquire into payments to politicians and related matters and which sat for 15 years .

Mr Lowry appealed that decision claiming, among other things, he was treated differently from one of the other tribunal subjects, the late former taoiseach Charles Haughey, who was awarded all his costs.

The tribunal opposed the appeal.

The appeal judgement was delivered on Thursday by CoA president Mr Justice Sean Ryan, whose colleagues, Ms Justice Finlay Geoghegan and Mr Justice John Edwards, were in agreement.

In its general ruling on costs, the tribunal emphasised the importance of distinguishing accordingly between substantive findings and findings in regard to co-operation, Mr Justice Ryan said.

It said co-operation was confined to consideration of the clearest findings of deliberate concealment, falsification or untruth where the tribunal "is satisfied the evidence supporting the findings is beyond any doubt and where that concealment, falsification or untruth has subsequently been laid bare".

The tribunal added that it "regrettably" had encountered "many instances of such conduct in the course of its inquiries".

It was relevant to the issues arising in the appeal that Mr Lowry had no notice of matters which the tribunal considered in its general ruling on determining the portion of costs to be allowed by reason of non-cooperation, Mr Justice Ryan said.

In its specific ruling, the tribunal concluded he should recover only one-third of his costs.   The tribunal had acknowledged it made no findings of non-cooperation in connection with its investigation of the awarding of the country's second GSM phone licence which occupied a considerable portion of its work, the judge said.

Mr Lowry argued this meant there was a disproportionate reduction in the amount of costs he was awarded.  He had also argued the non-cooperation findings were arrived at in breach of fair procedures and without adequate material to substantiate them.

Mr Justice Ryan said he did not consider the tribunal to be in breach of fair procedure obligations in relation to its specific ruling which made findings of non-cooperation. 

While he was conscious of the tribunal's observation that there was no mathematical formula that can be applied to the question of appropriate and just deduction of costs, it "is not clear to me why the tribunal fixed on such a very substantial reduction" (of two-thirds), he said.

On the face of it, it appeared the decision was made to deprive Mr Lowry of part of the costs of representation at modules of the tribunal in which there was no allegation of non-operation "but what the reason was or how the amount was determined is impossible to ascertain", he said.

The judge was concerned with the requirements for reasons (to be given) as a matter of administrative law, and on the related question of the failure to offer Mr Lowry an opportunity to address the quantum of the reduction and the methodology of measurement the tribunal was going to adopt.

"In my view, the ruling has to be interpreted as embodying some impermissible considerations", he said.

Mr Lowry was alerted by the tribunal as to possible findings of non-cooperation but he was not alerted to the potential consequences in relation to the amount of disallowance of his costs, he said.

While dismissing the appeal in relation to the specific ruling (that he should not be awarded all his costs), he allowed the appeal in relation to the decision that he should only get one-third having regard to the findings of non cooperation in accordance with the principles of the general ruling and in accordance with the appeal court's judgment.

He was therefore entitled to an order quashing the tribunal's costs decision of October 31, 2013.

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