Lowry challenges ‘disproportionate’ Moriarty costs ruling

Former Fine Gael minister Michael Lowry is challenging a decision by the Moriarty Tribunal to only award him one-third of the costs of his legal representation before the inquiry.

The tribunal made the costs ruling on foot of its finding Mr Lowry failed to fully co-operate with it during its 14-year tenure.

The one third ruling was “disproportionate”, particularly having regard to the level of co-operation Mr Lowry provided to the inquiry, Niamh Hyland SC, for Mr Lowry, argued.

Mr Lowry claims he was treated unfairly and was discriminated against compared to the other subject of the tribunal, the late former taoiseach Charles Haughey, who was awarded 100 per cent of his costs.

The Independent TD for Tipperary North claims his overall costs bill will run into millions because he had to engage with the tribunal on an almost continuous basis over its 14 years.

The arguments were made during the opening of Mr Lowry's High Court judicial review application over the October 2013 decision of the tribunal on the costs matter. The tribunal is opposing the action.

Ms Hyland said her client and Mr Haughey were the two subjects of the terms of the reference of the tribunal, set up in 1997 to investigate whether payments were made to the two men while in public office and in circumstances which gave rise to inferences the payments were in connection with office.

In its findings, the tribunal held, in the course of his office, Mr Lowry conferred benefit on businessman Denis O’Brien who had made or facilitated payments to the then communications minister, Mr Lowry. There was no finding Mr O’Brien had benefited from those payments.

Mr Lowry rejects those findings, counsel said.

In “stark contrast” to what happened with Mr Lowry, the tribunal found that between 1979 and 1996, Mr Haughey obtained benefit of €11 million which in 1998 was 171 times his salary, counsel said.

No criminal charges arose out of this as the tribunal findings have no legal effect and were described by one Supreme Court judge as "sterile" legal findings, she said. Mr Haughey was charged for obstruction of another tribunal, the McCracken Tribunal, but those charges were never heard as a result of prejudicial comments by a Cabinet minister.

Ms Hyland argued an example of the level of co-operation Mr Lowry provided to the tribunal included that he had made available to it 31 bank accounts over nine years. That involved a huge amount of work, she said.

Mr Lowry had also provided waivers in relation to access to bank accounts of close family members despite a separate successful legal challenge taken by Mr Haughey over similar efforts to access accounts of the latter’s family.

Mr Lowry was happy not to withdraw those waivers even after being offered the opportunity to do so, counsel said.

Mr Lowry had not brought any legal challenge to the tribunal until this case unlike others, including Mr Haughey and Mr O’Brien, who had brought such challenges, counsel said.

This was in circumstances where 70 per cent of the tribunal was devoted to the awarding of the country’s first mobile phone licence to ESAT, Mr O’Brien’s company.

There was “inequality and unfairness” by the tribunal in that it failed to apply its own legal principles in making the costs order, counsel said.

There was a “most surprising lack of transparency” in that the tribunal did not make its rules on costs available until Mr Lowry sought a discovery order from the courts, she added.

The same procedures used for assessing Mr Haughey’s right to all of his costs were not applied to Mr Lowry, she submitted.  Many of the same features of the Haughey case were in Mr Lowry’s case and the refusal of the bulk of her client’s costs was irrational and unfair. There was a “gateway” set up by the tribunal for deciding costs but Mr Haughey was never required to go through that gateway, she added.

While the tribunal said Mr Lowry failed to identify one bank account in the Isle of Man and had furnished falsified documents,  Mr Lowry did identify the Isle of Man account in 2001, the waiver he had granted in relation to his accounts covered it and Mr Lowry also believed it was not relevant, she said.

There was no evidence of furnishing false documents, she said.

The tribunal had come to its conclusions against Mr Lowry based on the standard of “an expression of reasonable opinion” but when it dealt with costs it used a materially different test of “beyond doubt”, counsel argued.

It was Mr Lowry’s case the tribunal did not apply its own test when it did so and fell into error, she said.

Mr Lowry was in court for the hearing which continues before Mr Justice John Hedigan.