Wednesday 21 February 2018

Elaine Byrne: Media revealed the Lowry link

Lowry is willing to take his legal battle for costs all the way to the European courts, writes Elaine Byrne

THE Moriarty tribunal issued its cost order on Michael Lowry's legal fees this week. Justice Michael Moriarty granted the Tipperary North TD just one-third of his claimed €8m legal bill which arose after his 15 years of legal representation before the corruption inquiry.

If this decision stands, the Moriarty tribunal will have cost the former Fine Gael Minister for Transport, Energy and Communications not only his reputation but an estimated €5m. This is the first of a number of costs orders the tribunal is expected to publish.

Under section three of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1997, the tribunal can refuse some or all of any legal costs if the presiding judge is 'of opinion that' someone failed 'to co-operate with' or knowingly gave 'false or misleading information' to the tribunal.

In a statement issued on his website, the ex-Fine Gael minister outlined what he says are five reasons put forward by the tribunal for denying him a considerable part of his costs claim. They relate to delaying the tribunal, UK solicitor's file, concealment of Irish Nationwide Account, Vineacre property and GSM licence. It isn't any more specific than that, and the tribunal never publishes the rationale for its costs order. So we are still a little in the dark.

In an interview with RTE's Fergal Keane, Michael Lowry described the costs ruling as a "pathetic and lame excuse from the tribunal to apportion blame to me for delaying the tribunal".

The independent TD has said he will challenge the tribunal's decision in the High Court and the European courts if necessary.

He rejects any assertion that he delayed, misled or frustrated the tribunal and attributes the 'appallingly slow pace' of the inquiry not due to his own lack of co-operation but "down to the tribunal's own incompetence".

Lowry is right. Not all the delays were down to him.

In fact, he almost didn't figure in the investigation at all. It was an accident.

The Moriarty tribunal, established in 1997, was meant to have ended in 2000 but then Charles Haughey challenged it in the courts. During that delay, journalist Matt Cooper broke the story regarding the $50,000 Telenor donation to Fine Gael.

The Moriarty tribunal was unexpectedly blown wide open. These media revelations initiated a brand new line of inquiry. The Moriarty tribunal was originally established to examine whether any payments were made to Lowry or Haughey from Ben Dunne. The investigation into the awarding of Ireland's second mobile phone licence to Denis O'Brien's Digifone would never have happened but for Haughey's delay.

A grotesque, unbelievable, bizarre and unprecedented turn of events.

The Moriarty tribunal concluded that Lowry's "insidious and pervasive influence" when the minister "not only influenced, but delivered" the valuable second mobile phone licence to Esat Digifone. This is strenuously denied by both Lowry and Denis O'Brien.

The Tipperary TD has said that the Moriarty tribunal costs order "changes everything legally, because the tribunal is seeking to now impose an actual punitive, financial consequence on me".

He notes that the Supreme Court has already ruled that tribunals cannot make such decisions.

In 2010, the Supreme Court ruled that the Flood/Mahon tribunal had no authority to determine that any person has hindered or obstructed its work, because this is a criminal offence and this was not therefore legitimate ground for a tribunal to deny costs. Property developers Joseph Murphy Jnr and Frank Reynolds, who initially had their costs withheld, were subsequently paid in full. So what now? A judicial review will instead serve to challenge the basis of the costs order, which denies Lowry an estimated €5m in legal fees.

With all this focus on cost, it is worth noting the evidence by the former chair of the Revenue Commissioners, Frank Daly, to the Moriarty tribunal in 2006.

As a direct consequence of the new powers introduced because of the tribunals, he explained how a substantial financial return to the exchequer had been recovered thus far.

"I think the figure right now stands at €2.193bn," he said.

Not a bad return overall.

Sunday Independent

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