No Moriarty witnesses to pay costs of tribunal

The Moriarty tribunal will not be asking any witness that appeared before it to contribute towards the tribunal's own costs, its chairman, Mr Justice Michael Moriarty, has said in a ruling circulated to third parties but not published generally.

The judge has also said he intends forwarding the so-called Lowry tapes to the “relevant authorities so further steps may be taken if required”.

Costs orders
The tapes, first published earlier this year by the Sunday Independent, are relevant to the question as to whether co-operation was provided by certain parties to the tribunal, the judge said, but he will not be taking them into consideration when making costs orders, as the persons affected have not been heard.

He said he gave careful consideration to whether he should have regard to the material when making his costs orders and also that the material appeared to support certain conclusions made by him in his final report.

The tapes, made in 2004, record former Fine Gael minister Michael Lowry discussing a 2002 £248,624 payment with a Northern Ireland businessman, Kevin Phelan. The payment was not disclosed to the tribunal, which investigated property deals in the UK involving Mr Lowry and Mr Phelen which, in its final report, the tribunal said were attempts by businessman Denis O'Brien to confer a benefit on Mr Lowry.

Last week Mr Lowry was told by the tribunal that he is to be granted only one-third of his legal costs, which are understood to be in the region of €8 million. He has said he is going to appeal the ruling.

Mr Justice Moriarty, in a ruling issued last week to some parties seeking costs from the tribunal, and seen by The Irish Times, said he is not going to deny costs to people on the basis that their evidence was not accepted, or to people who made "groundless attacks" on the tribunal in public or engaged in aggressive correspondence with it, tying up the tribunal in unnecessary disputes. Nor is he going to seek to have people who misled the tribunal pay for costs incurred by the tribunal.

He said he is going to refuse costs in instances of the “clearest findings of deliberate concealment, falsification or untruth, where the tribunal is satisfied that the evidence supporting the findings is beyond any doubt, and where that concealment, falsification or untruth has subsequently been laid bare. Regrettably, the tribunal has encountered many instances of such conduct in the course of its inquiries.”

While some people had queried the constitutionality of a tribunal making cost orders, he said it was difficult to see how a tribunal could operate effectively, or at all, if persons appearing before it knew they would get their costs even if they were unco-operative or provided false information.

Mobile phone licence
The Moriarty tribunal lasted from 1997 to 2011. A lengthy part of the tribunal's work arose from the 1995 mobile phone licence competition, won by Mr O'Brien's Esat Digifone. Mr Lowry has said he is being denied a large proportion of his legal costs on the basis that his attendance at this aspect of the tribunal's work was not necessary as it was more focused on the actions of the civil servants who conducted the competition.