Moriarty Tribunal cost rulings delayed by Lowry case

The Moriarty Tribunal has told a number of parties awaiting costs rulings, including businessman Denis O'Brien, that no decisions will be made in their cases until litigation by Michael Lowry has come to a conclusion, according to informed sources.

Because Mr Justice Michael Moriarty has said he will not be making any decision until Mr Lowry's case is fully resolved, it is likely that a decision on one of the largest costs bills facing the tribunal will not be made for some time.

Mr Lowry is awaiting a ruling by the High Court on his challenge to the tribunal’s decision to only award him 30 per cent of his fees, on the grounds of lack of co-operation.

It is understood the Tipperary deputy, who said the fees would amount to millions of euro, intends to appeal to the Supreme Court if it goes against him.

This means that, if the High Court rules against him, it will probably be well into 2016, if not later, before a ruling will be issued on Mr O’Brien’s costs bill.

Inquiry within inquiry

The tribunal conducted what was described as a “tribunal within a tribunal” when it began to investigate whether Mr Lowry, when he was minister for communications, interfered in the issuing of the State’s first mobile-phone licence to a private company, in the mid-1990s, in a manner that benefited Mr O’Brien’s Esat Digifone, which got the licence.

The inquiry went on for years and involved a substantial legal team representing Mr O’Brien. In his 2011 tribunal report, Mr Justice Moriarty found that Mr Lowry “secured the winning” of the 1995 licence competition by Esat, and that payments from Mr O’Brien to Mr Lowry were “demonstrably referable to the acts and conduct of Mr Lowry” during the licence process, acts which benefited Esat Digifone. Mr O’Brien and Mr Lowry said the findings were wrong.

Treated unfairly

The tribunal subsequently told Mr Lowry that he would only get one third of his legal costs on the grounds that he had not co-operated with the inquiry.

In the High Court, counsel for the tribunal, Shane Murphy SC, said its decision on costs was arrived at after “a very elaborate process” and all fair procedures were observed.

Mr Lowry was given the opportunity to make submissions on costs and did so, he said. The costs decision was made with reference to the findings in a report on Mr Lowry’s conduct rather than the substantive findings of the tribunal.

Niamh Hyland SC, for Mr Lowry, said her client was being treated unfairly and discriminated against when compared with the other main subject of the tribunal, the late former taoiseach Charles Haughey, who received all of his costs. The one-third ruling was "disproportionate", she said.

A spokesman for the Department of An Taoiseach said total costs in the Moriarty Tribunal were €53.3 million by the end of October 2015 and that Mr Justice Moriarty had indicated that the majority of cost applications had been considered by him and only a limited few remained.

The tribunal retains a small legal and administrative staff to deal with applications for third-party costs and with the ongoing wind-down.

The tribunal is also responding to a number of legal proceedings against it.