Lowry wins appeal to avoid paying for tribunal legal costs
‘Programme of falsification’
MICHAEL Lowry has won an appeal bid to strike down a High Court judgment that ordered him to pay twothirds of an €8million costs bill for the Moriarty Tribunal.
The 65-year-old Independent TD for Tipperary North had claimed he was ‘discriminated’ against because Charles Haughey never had to pay a cent in legal costs.
The High Court decided in 2016 that Mr Lowry should pay the millions because he behaved worse than the extaoiseach while being investigated by Moriarty.
But yesterday, three appeal judges upheld the former Fine Gael minister’s appeal and ordered the payments-to-politicians inquiry to review its ‘radical’ decision to land him with such a big costs bill. The mammoth 14-year inquiry’s March 2011 final report focused on Mr Lowry and a number of other controversial public figures, including Mr Haughey and Ben Dunne. Mr Lowry was found by Moriarty to have carried out a ‘calculated and blatant programme of falsification and deception’ in some of his dealings with the tribunal, the court previously heard.
But Court of Appeal president Sean Ryan, sitting with judges Mary Finlay Geoghegan and John Edwards, yesterday ruled that a tribunal is not entitled to ‘penalise’ someone like Mr Lowry with costs on the basis of ‘non-cooperation’.
The tribunal had unfairly landed Mr Lowry with ‘swingeing’ costs without first giving him a chance to argue against it, the appeal judges found.
Although mathematical precision wasn’t needed from the tribunal when calculating costs liabilities, ‘in this situation it did demand that Mr Lowry be given an opportunity of dissuading the tribunal’ from landing him with the large bill, the judges said.
The judges added: ‘The seriousness of the impact of the [costs] ruling by the tribunal on Mr Lowry and his professional advisers is obvious.’
Tribunals are not allowed to make costs decisions based on any judgment ‘of the moral quality of the non-cooperation’ by any participant like Mr Lowry, because costs cannot be used as any form of ‘quasi-penalty or sanction’, the judges said.
The court allowed Mr Lowry’s appeal on costs – and sent the matter back to the tribunal ‘for reconsideration of the costs to be granted to Mr Lowry having regard to the findings of non-cooperation’. In his legal battle that began in 2015, Mr Lowry said in the High Court that Mr Haughey had ‘got off scot-free’ on costs while the Moriarty Tribunal had tried to ‘ruin’ him.
In January 2016, Judge John Hedigan ruled that Mr Lowry behaved worse than Mr Haughey because he had actively misled and deceived the Moriarty Tribunal – and landed him with a bill for the lion’s share of his costs.
Then last year at the Court of Appeal, Mr Lowry’s lawyers claimed he’d been more helpful to Moriarty than Mr Haughey.
Niamh Hyland SC, for Mr Lowry, told judges: ‘Judge Hedigan in the High Court said there was a clear difference of behaviour between Mr Haughey and Mr Lowry. That Mr Lowry had engaged in deliberate falsification and Mr Haughey had not. We don’t accept that. There is huge non-cooperation relating to the Haughey conduct.
‘He [Haughey] didn’t give any details of his accounts to the tribunal. Mr Lowry recreated his accounts over nine years. There is a huge difference in terms of cooperation.’
INDEPENDENT TD Michael Lowry yesterday won a case against the Moriarty Tribunal’s refusal to award him two-thirds of his legal costs. It remains to be seen whether that decision will be appealed to the Supreme Court. Regardless of the ultimate outcome, however, nobody should be under the illusion that this is in any way a vindication of the man or his reputation.
Seven years ago this month, the tribunal’s official report delivered a scathing verdict on Mr Lowry and his business relationship with Ben Dunne. It found that in one particular instance, they had ‘contemplated and attempted’ an exercise that was ‘profoundly corrupt to a degree that was nothing short of breathtaking’.
Setting aside the other controversies that have dogged Mr Lowry, that finding alone makes him unfit for public office – and this latest ruling does nothing to restore his good name. His continuing presence in the Oireachtas is little short of a blight on democracy.