Michael Lowry wins appeal over Moriarty Tribunal legal costs

Independent TD Michael Lowry has won his appeal over a decision of the Moriarty Tribunal to award him only one-third of his legal costs of his participation in the tribunal.

Mr Lowry says his total costs run to millions of euro.

The three-judge Court of Appeal has sent the question of what the amount of the costs should be back to the tribunal for reconsideration.

The court dismissed the Tipperary TD’s appeal in relation to a specific ruling by the tribunal that he not be awarded all his costs, having regard to findings of non-cooperation by him.

The High Court had dismissed the former Fine Gael minister's challenge to the costs decision because he engaged in "a litany of falsification and deception" in his failure to cooperate with the tribunal, set up to inquire into payments to politicians and related matters and which sat for 15 years .

Mr Lowry appealed that decision claiming, among other things, he was treated differently from one of the other tribunal subjects, the late former taoiseach Charles Haughey, who was awarded his costs.

The tribunal opposed the appeal.

Disproportionate reduction

The appeal judgement was delivered on Thursday by Court of Appeal president Mr Justice Sean Ryan, whose colleagues, Ms Justice Finlay Geoghegan and Mr Justice John Edwards, were in agreement.

In its general ruling on costs, the tribunal emphasised the importance of distinguishing between substantive findings and findings in regard to co-operation, Mr Justice Ryan said.

The tribunal said co-operation was confined to consideration of the clearest findings of deliberate concealment, falsification or untruth where the tribunal “is satisfied the evidence supporting the findings is beyond any doubt and where that concealment, falsification or untruth has subsequently been laid bare”.

The tribunal added that it “regrettably” had encountered “many instances of such conduct in the course of its inquiries”.

It was relevant to the issues arising in the appeal that Mr Lowry had no notice of matters which the tribunal considered in its general ruling on determining the portion of costs to be allowed by reason of non-cooperation, Mr Justice Ryan said.

In its specific ruling, the tribunal concluded he should recover only one-third of his costs. The tribunal had acknowledged it made no findings of non-cooperation in connection with its investigation of the awarding of the country’s second mobile phone licence, which occupied a considerable portion of its work, the judge said.

Mr Lowry argued this meant there was a disproportionate reduction in the amount of costs he was awarded. He had also argued the non-cooperation findings were arrived at in breach of fair procedures and without adequate material to substantiate them.

Fair procedure

Mr Justice Ryan said he did not consider the tribunal to be in breach of fair procedure obligations in relation to its specific ruling which made findings of non-cooperation.

While he was conscious of the tribunal’s observation there was no mathematical formula that can be applied to the question of appropriate deduction of costs, it “is not clear to me why the tribunal fixed on such a very substantial reduction” (of two-thirds), he said.

On the face of it, it appeared the decision was made to deprive Mr Lowry of part of the costs of representation at modules of the tribunal in which there was no allegation of non-cooperation, “but what the reason was or how the amount was determined is impossible to ascertain”, he said.

Mr Lowry was alerted by the tribunal as to possible findings of non-cooperation but he was not alerted to the potential consequences in relation to the amount of disallowance of his costs, he said.

While dismissing the appeal concerning the specific ruling that Mr Lowry should not be awarded all his costs, he allowed the appeal in relation to the decision he should only get one-third.

Mr Lowry was therefore entitled to an order quashing the tribunal’s costs decision of October 31st, 2013.