Analysis: Judge’s direct remarks signal greater scope for media

The Moriarty tribunal's findings in relation to Michael Lowry were of "a litany of falsification and deception", Mr Justice John Hedigan said in his judgment on Wednesday. He also referred to the tribunal's "findings of perjury and bribery of a potential witness to support Mr Lowry's false evidence".

His remarks were another instance of the courts, in commenting on the 2011 findings of Mr Justice Michael Moriarty, using direct and simple language that was avoided, probably for legal reasons, by the tribunal chairman himself when considering the results of his tribunal's investigation. The use of the words by the courts allows the media, in turn, to use such terms with greater comfort.

Mr Justice Hedigan’s comments came in the wake of those of the judges of the Supreme Court who, in a ruling on a separate case in October 2012, made liberal use of the word “corruption” in relation to the tribunal’s main findings. Those findings concerned both the “money trail” dealings between Lowry and businessman Denis O’Brien, and the issuing of the State’s second mobile phone licence to O’Brien’s Esat Digifone, when Lowry was a government minister.

As was reported late last year, the tribunal is holding off on its rulings in relation to costs for O’Brien, and a number of other parties, until the matter of Lowry’s objection to being denied two-thirds of his costs has been ruled on by the courts. The politician has said he will appeal Mr Justice Hedigan’s ruling to the Court of Appeal, so the court process has not run its course yet.

It will not be until Lowry and others come to actually applying for their costs that their size will become known, but Lowry’s are estimated to be “several million euro”. O’Brien’s are probably in the teens of millions.

Observations

The judge’s observations about perjury and bribery arise from the tribunal’s investigations into property deals in England that it decided involved O’Brien and Lowry. The tribunal was given the files of the English solicitor involved,

Christopher Vaughan

, but later discovered that these files had been doctored. In its report, it blamed Lowry and others for this, and said that Lowry knowingly gave misleading evidence to the tribunal that chimed with the doctored files.

One of the people who had files of interest to the tribunal was Northern Ireland businessman Kevin Phelan, but he never agreed to give evidence. Lowry, and his accountant Denis O'Connor, "orchestrated" agreements with Phelan whereby Phelan was paid £65,000, nominally in relation to a land deal, but predominantly, the tribunal found, to ensure that Phelan did not undermine the false story that had been presented to the tribunal.

False story

O’Connor, as agent for Lowry, negotiated a further payment of £150,000 from O’Brien to Phelan which was, the tribunal decided, also made to ensure Phelan did not undermine the false story given to the tribunal.

At the outset of Lowry’s dealings with the tribunal, he gave it permission to look into his onshore and offshore bank accounts, and supplied the three addresses he used for these accounts. It was not until some years later that the tribunal discovered an account he had not disclosed, in the Isle of Man, in Lowry’s name and using an address that was not among the three he had earlier supplied. The address was Brophy Thornton, The Gables, Foxrock, Dublin, Lowry’s accountants at the time, where O’Connor worked.

The bank account had been opened in 1996 to receive £147,000, money which the tribunal eventually ruled had come from O’Brien. At the time of the transaction, Lowry was a government minister. The licence had been issued to Esat five months earlier.

Both Lowry and O’Brien have said the tribunal’s findings were wrong. As Mr Justice Hedigan noted on Wednesday, the time within which they can be challenged in the courts has now passed.