Former government minister Michael Lowry has brought a legal challenge to a decision refusing him the bulk of his legal costs of engaging with the Moriarty Tribunal. Mr Lowry claims the costs decision is discriminatory.
The High Court granted Mr Lowry permission to bring judicial review proceedings challenging the tribunal’s decision last October to award him just one-third of his costs. His overall costs bill is expected to amount to several millions of euro.
The tribunal, set up in 1997 to investigate alleged payments to Mr Lowry and to the late Fianna Fáil taoiseach Charles Haughey, decided to grant him just one-third of his costs, arising from its finding that he had failed to co-operate fully with the inquiry.
Mr Lowry claims he is being discriminated against in comparison to Mr Haughey and businessman Ben Dunne, a tribunal witness, who were awarded their full costs.
The application for judicial review was made by Niamh Hyland SC, for Mr Lowry, before Mr Justice Michael Peart on an ex parte (one side-only represented) basis. The matter will come before the court again in March.
Mr Lowry wants a declaration that Mr Justice Michael Moriarty acted unreasonably and/or disproportionately in withholding two-thirds of his costs.
It is claimed the tribunal erred in making findings of alleged failure to co-operate, or the giving of misleading information to it, without adequate evidence to support that conclusion and without meeting the tribunal’s own rules in relation to standard of proof. It also erred in making such findings without affording him a right to a fair hearing, it is claimed.
Mr Lowry wants the court to order that he should be entitled to his full costs. He says the tribunal sat in public a total of 384 days, 240 of which were concerned with matters relating to him and which were divided into “the money trail” module and the “GSM (mobile phone) licence” module.
The only findings of non-cooperation and concealment against Mr Lowry, now an Independent TD for Tipperary North, were in relation to the money trail module, it is claimed. Substantial parts of the 654-page report on the money trail do not concern Mr Lowry or assert non-cooperation by him, it is also argued.
Seventy per cent of the tribunal’s time, resulting in a 1,696 page report in two volumes, was taken up with the mobile phone licence module but no finding of non-co-operation was ever advanced or made in relation to his conduct in relation to this, it is claimed.
Mr Lowry contends he co-operated extensively with the tribunal not just during the public sitting days but at numerous private meetings with the tribunal’s legal team.
Although Michael Kelly, the solicitor who represented him during the tribunal died in March 2011, his new lawyers have drawn up a draft estimate that more than 9,000 hours (excluding senior and junior counsel’s time) were worked in representing him.
Ms Hyland said, while the tribunal concluded Mr Lowry had been involved in falsifying and suppressing documents to mislead it (the tribunal) as to the true nature of his involvement in transactions that were being investigated, it had not met its own standard of proof “beyond any doubt” in relation to a test for an adverse costs finding.
Mr Lowry was the only party who has had his costs withheld on the basis of non-cooperation, counsel said.