Michael Lowry loses case against Moriarty Tribunal on costsWednesday 27 January 2016 23.57
Former Fine Gael minister Michael Lowry has lost a High Court challenge to a decision by the Moriarty Tribunal to refuse him two thirds of his costs of engaging with the tribunal.
The tribunal was set up in 1997 to investigate payments to Mr Lowry and former Fianna Fáil Taoiseach, the late Charles Haughey.
At a hearing last November, lawyers for Mr Lowry said his overall costs bill was "vast" and would amount to several million euro.
He claimed the decision was discriminatory, disproportionate and unfair.
In a judgment this morning, Mr Justice John Hedigan said the decision was fair and reasonable.
The judge said Mr Lowry had failed to demonstrate any unreasonableness or irrationality, disproportionality or discrimination in the decision that was made by the tribunal on costs.
He said it seemed clear that Mr Lowry was "advanced every element of procedural fairness in being furnished with the fullest details of what the tribunal intended to rely on in coming to a decision on costs and was given every opportunity to respond".
The judge said Mr Lowry had taken that opportunity in full and he could not find any lack of fairness in the procedure that was followed.
"Like any other party appearing in front of the tribunal Mr Lowry must be taken as aware of the fact that if he failed to cooperate with it he was liable to have orders made prejudicial to him in relation to costs," the judge said.
Mr Lowry's application failed on all the grounds raised.
Mr Justice Hedigan stressed that the application in this case was not, and could not, be a challenge to the tribunal's findings in its report of March 2011.
He said those findings stand unchallenged and neither a direct nor a collateral challenge could be made in these proceedings. He said the case was limited to a specific challenge of costs.
He added that the unchallenged findings of the tribunal were a "litany of falsification and deception by Mr Lowry including the alteration and falsification of a solicitor's files in order to conceal certain dealings from the tribunal".
They include findings of perjury and bribery of a potential witness to support Mr Lowry's false evidence. All of this was with the intention of misleading and frustrating the tribunal.
As a result of this conduct by Mr Lowry the tribunal was frustrated and misled in its work and was protracted significantly.
He said the tribunal was well within the bounds of reasonableness in deciding to withhold two thirds of his costs.
He said the manner in which the tribunal came to its decision on costs was "the very essence of proportionality".
He said Mr Lowry had compared his treatment in relation to costs with that of Charles Haughey.
The judge said Mr Haughey had not deliberately misled the tribunal where Mr Lowry had. There was a reasonable basis to differentiate between the two, he added.
"On the one hand, it found a calculated and blatant programme falsification and deception with the clear aim of actively misleading the tribunal...on the other hand it found that there was a sort of sitting on their hands by the other men, most notable Mr Haughey.
"The tribunal was entitled to find that they were not in like situations," the judge added.
In a statement released on behalf of Mr Lowry by his solicitors, the Tipperary TD said he is "disappointed" at the decision.
It adds that "having had an opportunity to consider the full judgment with my legal team, they have advised me that I should appeal the decision on a number of substantive grounds and they are already preparing an appeal of this decision to the Court of Appeal."
The statement also claims that "no matter what way the Court decided today, this case is one that was always going to be brought by either side to the highest level for final decision and determination.
"As I have already stated, I have never accepted the findings issued by the Moriarty Tribunal as they were not grounded on any evidence or facts presented throughout the length of its sittings."