Lowry v Mr. Justice Moriarty
| Jurisdiction | Ireland |
| Judge | the President |
| Judgment Date | 15 March 2018 |
| Neutral Citation | [2018] IECA 66 |
| Date | 15 March 2018 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2018] IECA 66 |
[2018] IECA 66
Ryan P.
The President
Finlay Geoghegan J.
Edwards J.
Neutral Citation Number: [2018] IECA 66
[2016 No. 128]
THE COURT OF APPEAL
Tribunals – Participation – Costs award – Reduction of costs awarded on basis of non-cooperation – Appellant seeking judicial review of costs decision – S 6 Tribunals of Inquiry (Evidence) (Amendment) Act, 1979
Facts: The appellant had been a participant before the Moriarty Tribunal into Payments to Politicians and Related Matters. The Tribunal's work continued for some considerable time, and critical findings were made in respect of the appellant. Following the appellant's application for his costs, the Tribunal stated 15 grounds on which it considered the appellant had either failed to co-operate with the Tribunal, or had knowingly misled it. In a subsequent substantive ruling, it concluded that the appellant's costs would be reduced by two thirds. The appellant's application for judicial review had been dismissed by the High Court, and he now sought to appeal
Held by Ryan P, the other Justices concurring, that the appeal would be allowed. The Tribunal's findings of non-cooperation were well founded, but the nature in which the decision on costs was made was not founded on a rational mode of calculation. Further, as the appellant's rights were directly affected, the failure to give the appellant an opportunity to dissuade the Tribunal on the proposed costs ruling was in breach of fair procedures.
The matter was therefore remitted to the Tribunal to reconsider the matter of costs.
This is an appeal by Mr. Michael Lowry from the judgment of Hedigan J. in the High Court on 27th January 2016 refusing his application for judicial review. Mr. Lowry sought to challenge a decision made by Moriarty J. as the sole member whereby the Tribunal reduced by two-thirds the costs recoverable by Mr. Lowry in respect of participation in its work. The respondent ordered that the appellant should recover from the Minister for Finance one-third of his costs of appearing by solicitor or counsel, such as were reasonably incurred and at a reasonable rate in respect of work undertaken within the Terms of Reference, such costs to be payable on a party by party basis when taxed and ascertained in default of agreement. The Tribunal withheld the major part of the costs because of non-cooperation, on the part of Mr. Lowry and knowingly providing the Tribunal with false information with a view to misleading it. The Tribunal made its Specific Costs Ruling in relation to Mr. Lowry on 31st October 2013.
Mr. Lowry's case is, first, that there is no factual evidence linking him to falsification or suppression of evidence. He claims that the decision is disproportionate: the phases of the inquiry in respect of which the Tribunal found non-cooperation were only a small part of the overall investigation, as to which there is no complaint. He says it is inconsistent when compared with the awarding of full costs to Mr. Charles J. Haughey and Mr. Ben Dunne, other persons who were investigated by the Tribunal, notwithstanding what he characterises as their failure to cooperate or concealment or withholding of information. Mr. Lowry maintains that his case was no worse than theirs, assuming that there is actual proof sufficient to make the standard for non-cooperation. He also claims that there was no objective re-examination of the evidence when the decision on costs came to be made and that was a necessary process because it was no longer a question of a Tribunal that was sterile of legal effect, but now it had actual teeth because it was imposing a severe penalty in financial terms on Mr. Lowry. He suggests that the Tribunal conflated the costs issue and the substantive findings that it made. He alleges breaches of fair procedures in and about the consideration of the issue by the Tribunal.
The severity of the impact of the decision to withhold two-thirds of his costs is obvious when the duration of the Tribunal's investigations and the extent of Mr. Lowry's participation are considered. His written submissions summarised the position as follows:
'The Applicant was represented by Kelly Noone Solicitors throughout the duration of the Tribunal. (Both Mr. Michael Kelly and Mr. Ray Noone are sadly now deceased). The Applicant was represented by a variety of counsel during the course of the Tribunal's inquiries. The cooperation of his representatives has never been doubted. Most of these representatives have been paid only a tiny, tiny fraction of the fees which they incurred well over a decade ago. Kelly Noone alone (without taking into account counsels' time) expended in excess of 9000 hours in representing him before the Tribunal. Separately, his accountant, Mr. O'Connor, has brought a claim for circa €1.7 million, the majority of which relates to Tribunal work. The Applicant simply does not have the means to discharge such a liability. Neither would any ordinary individual.' [Para 2.04]
The Moriarty Tribunal's work extended over an extraordinary 15 years in its investigative phase and then there was a further substantial time in dealing with costs. It is now more than 20 years since the appellant first faced into the work of the Tribunal. For this appeal he sought leave for the submissions to exceed the limit specified by the practice direction of the Court and in the result they came in at three times the normal limit. What was permitted to the appellant had to be allowed to the respondent. The brief summary above gives some indication of the range of the legal debate the case generated. In the result, however, it seems to me that the case falls to be determined in a settled legal context according to well-established principles. The issue with this Court as it so often is with appeals is the application of the principles to the facts, bearing in mind that in judicial review the applicant has to satisfy one or more of tests including rationality and reasonableness and fairness of procedures.
The background to the costs issue that is the subject of the judicial review and now this appeal may be sketched in the briefest terms as follows. The Moriarty Tribunal into Payments to Politicians and Related Matters was established in September 1997. Part I of the report of the Tribunal concerning Mr. Haughey was published in December 2006. Following completion of the major part of its enquiry hearings into payments to Mr Lowry and the second mobile telephone licence competition, the Tribunal gave notice to affected persons including Mr. Lowry of provisional findings in November 2008 to give them an opportunity of responding, whether by argument or submission or request for further evidence. Mr. Lowry's solicitors expressed particular concern about the proposed conclusions in a letter of 27th November 2008 in which they said that 'some of the language used in the Provisional Findings (however they are to be described) raises very clearly the real possibility that the costs of Mr. Lowry and Mr. O'Connor's representation may not be awarded to them.' The Tribunal relies on this statement to show that Mr. Lowry's solicitors were aware of the significance of those findings in regard to costs.
On 30th April 2010 the Tribunal gave notice of new, revised Provisional Findings which reflected additional evidence that had been heard since November 2008 and which also took account of the Supreme Court decision of 21st April 2010 in the case of Murphy v. Flood [2010] 3 IR 136. Part II of the report was published in three volumes in March 2011 in which there were critical findings concerning Mr. Lowry that included findings of non-cooperation on his part. They are the basis of the decision in question and will be set out presently. The Tribunal notes in replying affidavits and submissions that Mr. Lowry did not seek to challenge the findings made in the report on publication, which it would have been open to him to do within a maximum period of 6 months.
The Tribunal then proceeded to invite applications for costs and Mr. Lowry duly did so by letter from his solicitors dated 27th July 2011 containing his application and submissions. In a letter of 1st March 2012 to Mr. Lowry's solicitors, the Tribunal gave notice of 15 matters which it considered might constitute or evidence a failure by Mr Lowry to cooperate with or provide assistance to the Tribunal or knowingly give false or misleading information to the Tribunal set out, in a schedule to the letter,. They were matters already contained in the report and are as follows: –
(i) Mr. Lowry knowingly concealed from the Tribunal throughout the period of his initial engagement with the Tribunal up to and including his evidence in 1999 the details relating to the Irish Nationwide (IOM) account opened in his name on 21st October 1996, and the details surrounding the provision of £147,000.00 to him by Mr. David Austin which was lodged to that account.
(ii) Mr. Lowry thereafter failed to notify those matters to the Tribunal until his belated disclosure in 2001, at a time when it was very likely that the Tribunal would independently and imminently discover those matters.
(iii) Mr. Lowry was centrally involved in the falsification and suppression of documentation with the intention of misleading and frustrating the work of the Tribunal, and his conduct in this regard misled and frustrated the Tribunal in fact.
(iv) Mr. Lowry together with others set about and implemented a course of furnishing to the Tribunal a materially false documentary record of the Mansfield and Cheadle property transactions.
(v) Mr. Lowry was involved in, and had knowledge of the creation of, the falsified versions of Mr. Christopher...
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