Thursday 23 November 2017

FitzPatrick challenges legal costs ruling after being found not guilty

Greystones resident Sean FitzPatrick has challenged a ruling that he is not entitled to the legal costs of his defence for the 48-day trial in which he was cleared of charges of giving illegal loans.

Earlier this year the former Anglo Irish Bank chairman was acquitted at Dublin Circuit Criminal Court of 16 counts of providing illegal loans to the Quinn family and the Maple 10 group of investors to buy shares in Anglo.

In June, Judge Martin Nolan rejected an argument from Mr. FitzPatrick's legal team that he should not be liable for the costs of his defence, which are thought to be substantial, despite his acquittal.

The State had opposed the costs application on the grounds that the prosecution was in 'the public interest'.

Before the High Court on Monday, lawyers for 66-year-old Mr. FitzPatrick argued that Judge Nolan's ruling was wrong in law, unreasonable.

Lawyers for Mr. FitzPatrick, who was not in court, said the decision should be quashed and Mr. FitzPatrick should be paid his costs.

It is submitted Judge Nolan applied the wrong legal test when ruling the businessman was not entitled to his costs. They claim that the decision not to award costs went against case law, which it is claimed, states the starting point for any application for costs in a criminal trial is the outcome.

In this case, Mr. FitzPatrick was acquitted of all charges both by the jury and by the direction of the trial judge.

Judge Nolan did not use the acquittal as the starting point in relation to the application for costs and referred to the acquittal just once in his ruling. An acquittal is not a neutral fact, it is claimed.

In his ruling, the Judge said that before he would levy costs against any entity, some fault would have to be shown in the discharge of their function. Judge Nolan said he could not see that in this case, and Mr. FitzPatrick's case could not succeed.

In his High Court challenge, Mr. FitzPatrick said this was where Judge Nolan fell into error.

In his action against Judge Nolan and the Director of Public Prosecutions, Mr. FitzPatrick is looking to quash the refusal of costs decision.

Leave to bring the challenge was granted, on an ex parte basis, by Ms Justice Marie Baker who made the matter returnable to a date in November.

During his trial, it emerged that insurers refused to cover Mr. FitzPatrick's legal costs. Mr. FitzPatrick's defence was privately funded after he was refused directors' and officers' liability (D&O) cover.

He did not seek legal aid. In early June he emerged from bankruptcy.

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