Monday 23 October 2017

Gene Kerrigan: Lowry tapes could feature in court battle over Moriarty tribunal costs

TD is readying lawyers for a fresh bid to defend his name and also to defend another claim, writes Gene Kerrigan

We're coming up to the 17th anniversary of Michael Lowry's resignation from ministerial office in November 1996. And according to Mr Lowry, he will be spending much of the coming period preparing to yet again launch a legal action to defend his name. And defending himself against a second legal action.

Last week, Mr Lowry announced that he had been denied two-thirds of his costs at the Moriarty tribunal, believed to be in the region of €8m. This was on the grounds that he had allegedly delayed the tribunal's progress.

Far from being dismayed, Mr Lowry said he would use it as a means of taking the tribunal to court, "if necessary to the European Courts", to challenge its wider findings.

In a second legal action, this time launched against him, Mr Lowry found himself on the wrong end of a judgement for the payment of some €650,000 (plus VAT).

"The tribunal chairman's accusation that I delayed and frustrated the tribunal is unfair, unjust and wrong," Mr Lowry said.

He claims that he was previously given legal advice that there was no legal basis on which he could challenge the tribunal's findings. He said he is now advised that the costs decision gives him that basis.

He claims that he will also challenge Judge Moriarty on the findings that he (Mr Lowry) interfered with the mobile phone licensing process, conferring an advantage on Denis O'Brien, which both he and Mr O'Brien deny.

This development comes some months after the disclosure, in this newspaper, of a taped conversation in which Mr Lowry claimed that he had made a large payment to a business associate, Kevin Phelan.

Payments to Mr Phelan were raised at the tribunal. The taped conversation took place on September 30, 2004, during a period in which the tribunal was taking evidence.

Mr Lowry told the tribunal, on oath, that he had made a single payment to Mr Phelan, of £65,000. The tribunal made findings on the reasons for this payment, with which Mr Lowry took issue.

However, in the taped conversation, Mr Lowry claimed to have paid Mr Phelan another sum of £250,000 (though he sometimes referred to it as £200,000). This was never revealed to the tribunal.

And in his taped conversation with Kevin Phelan, Mr Lowry appeared anxious that there be no reference to the £250,000 payment.

"I'm asking you, Kevin, for fuck's sake, will you protect me just a small bit. For Jaysus sake, don't land me in it, I'm destroyed as it fucking is. I can't bring out that fucking 200 – that 250 – again. If that comes out again, I'm fucking ruined, I'm bankrupt . . .

". . . Kevin, Kevin, Kevin, the only question I'm asking you, Kevin, Kevin, I'm asking you – I'm fucking begging you. Please don't, because, I'm not – they can't find that 200. I never declared it . . .

". . . Now, the 200 – the 250 – that I gave you, I paid that directly, I never put that through my books or my account or anything, nobody's going to fucking get it . . ."

When the story of the taped conversation was published, Mr Lowry confirmed that he had made the payment.

Asked if he remembered the conversation and could confirm it was him speaking, Mr Lowry denounced what he called "trial by media".

On the face of it, this taped conversation might have some relevance to any court seeking to determine if Mr Lowry did indeed delay and frustrate the Moriarty tribunal or whether such a claim "is unfair, unjust and wrong".

Given the complexity of legal matters, it is not possible to predict what role, if any, the taped conversation might play when Mr Lowry's case comes to court.

Last week's second legal development, which Mr Lowry said on Friday he will appeal, is an order for payment of €650,000 (plus VAT). This arises from work done by an accountant, Denis O'Connor, of the firm BBT. It relates to Mr Lowry's appearances at the Moriarty tribunal.

The two legal moves – that taken by Mr Lowry and that taken against him – are both connected to Kevin Phelan, with whom Mr Lowry had the taped conversation published in the Sunday Independent.

Both Mr Lowry and the accountant Mr O'Connor were mentioned in Judge Moriarty's findings, regarding payments to Mr Phelan. The judge found that there was a "choreographed falsehood" which came about as a result of a payment to Mr Phelan of £65,000.

He wrote: "The tribunal has concluded that this choreographed falsehood was negotiated and orchestrated by Mr O'Connor and Mr Lowry, with the objective of misleading the tribunal, and the purpose of which was to secure Kevin Phelan's co-operation in the false version of events and explanations advanced to the tribunal."

Sunday Independent

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