Lowry v Mr Justice Moriarty
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 27 January 2016 |
| Neutral Citation | [2016] IEHC 29 |
| Court | High Court |
| Docket Number | [2014 No. 48 JR] |
| Date | 27 January 2016 |
[2016] IEHC 29
[2014 No. 48 JR]
THE HIGH COURT
JUDICIAL REVIEW
Revenue – Tribunal of Inquiry (Evidence) (Amendment) Act 1979 – Ethics in Public Office Act, 1995 – Award of costs – Limitation on doctrine of legitimate expectation
Facts: The applicant sought an order of certiorari for quashing the order of the respondent directing that the applicant could recover only one-third of his costs for appearing before the respondent by solicitor and counsel in relation to certain irregular payments that were made to and benefits conferred on the applicant in his capacity as a deputy to Dail Eireann. The applicant contended that the said order was disproportionate and had been made in breach of fair procedures and in violation of the doctrine of legitimate expectation.
Mr. Justice Hedigan refused to grant an order of certiorari and ancillary reliefs to the applicant. The Court held that the decision to award the said costs to the applicant was based upon the substantial findings made by the respondent in relation to the conduct of the applicant during the specified period and it was made by following the appropriate procedure. The Court found that the applicant despite being aware of the procedure adopted by the respondent, had actively misled the respondent and delayed the course of inquiry and thus, he had no real reasons to feel aggrieved by the impugned order. The Court observed that the procedure adopted by the respondent had afforded full opportunity to the applicant to represent his case and as such, there was no denial of fair procedures. The Court opined that the limitation to the doctrine of legitimate expectation would apply in the present case as there was no reason to interfere with the statutory discretion vested with the respondent to award the costs as it was proportionate to the objective that the respondent sought to achieve.
In these proceedings, the applicant seeks a range of reliefs in connection with a ruling and order made by the respondent in October 2013 in respect of an application by the applicant for the legal costs of appearing before the Tribunal. By that ruling and order, the respondent decided and ordered that the applicant 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 and party basis when taxed and ascertained in default of agreement. By order of 27th January, 2014, Peart J. granted leave to the applicants to apply for judicial review for the following reliefs:
‘1) An Order of Certiorari quashing the Order of the Respondent of 31 October 2013 directing that the Applicant should recover from the Minister for Finance one third of his costs of appearing before the Tribunal by solicitor and counsel
2) If necessary an Order of Certiorari of the Ruling of the Respondent in respect of an Application for Legal Costs by Michael Lowry
3) A declaration that the Respondent has acted ultra vires and/or has acted unreasonably and/or disproportionately in withholding 2/3 of the applicants costs by order dated 31 October 2013 having regard to the Applicant's full cooperation in respect of the GSM module of the Tribunal of Inquiry
4) A declaration that the Respondent has acted ultra vires and/or has acted unreasonably and/or disproportionately in withholding 2/3 of the applicants costs by order dated 31 October 2013 by failing to have adequate regard to the Applicant's undisputed cooperation in respect of substantial aspects of the ‘Money Trail’ module of the Tribunal of Inquiry
5) A declaration that the Order of 31 October 2013 was discriminatory in its terms having regard to previous costs Orders made by the Respondent including but not limited to that made in respect of Mr. Charles Haughey and Mr. Ben Dunne
6) A declaration that the Respondent has acted ultra vires and unlawfully in failing to apply the conditions applicable to the withholding of costs in his General Ruling on Costs of October 2013
7) A declaration that the Respondent has acted ultra vires and/or erred in law in making findings in respect of the Applicant's alleged failure to cooperate or provide assistance to the Tribunal or the giving of false or misleading information to the Tribunal without any or any adequate evidence to support the conclusions in this regard and without meeting the standard identified by him in the General Ruling
8) A declaration that the Respondent has acted ultra vires and/or erred in law in making findings in respect of the Applicant's alleged failure to cooperate or provide assistance to the Tribunal or the giving of false or misleading information to the Tribunal without affording the Applicant a right to a fair hearing
9) A declaration that the Order of 31 October 2013 is ultra vires being grounded upon substantive findings and/or considerations other than the Applicant's cooperation with the Tribunal
10) A declaration that the findings in respect of the Irish Nationwide Account are ultra vires irrational and erroneous and in breach of the Applicant's fair procedures
11) A declaration that the findings in respect of the Vaughan Files are ultra vires irrational and erroneous and in breach of the Applicant's fair procedures
12) A declaration that the findings in respect of the Disputes and Settlements on UK Properties are ultra vires irrational and erroneous and in breach of the Applicant's fair procedures
13) A declaration that the Respondent failed to have any or any adequate regard to the decision of the Supreme Court in Murphy v. Flood [2010] IR 136 in respect of the impermissibility of making findings of obstruction or hindering
14) A declaration that the Applicant enjoyed a legitimate expectation that he would be the awarded his costs of the distinct investigations phases or modules of the Tribunal in respect of which no non-cooperation findings were made
15) A declaration that the manner of the application and construction by the Respondent of section 6(1)(a) of the Tribunals of Inquiry (Evidence)(Amendment) Act, 1979 (as amended) is contrary to the provisions of Bunreacht na hÉireann and in particular Articles 34 and 40, thereof
16) A declaration that the withholding of 2/3 of the Applicant's costs constitutes inter alia, the imposition of a penalty and engages the Tribunal in the administration of justice
17) A declaration that the Respondent's findings on costs in respect of the Applicant have exceeded its Terms of Reference and are accordingly ultra vires
18) A declaration that the Respondent in withholding 2/3 of the Applicant's costs has failed to perform its functions in a manner compatible with the Applicant's rights under the European Convention on Human Rights
19) An order of Mandamus by way of application for judicial review directing the Respondent to make an Order that the Applicant should recover his full costs of appearing before the Tribunal by solicitor and council when taxed or ascertained
20) A declaration that there were insufficient reasons to render it equitable to deny the Applicant the entirety of his costs or in the alternative to award him 1/3 of his costs of representation before the Tribunal
21) An order if necessary remitting the Applicant's application for costs for reconsideration by the Respondent in accordance with law and/or the Order of this Court
22) An order if necessary directing the Respondent to have adequate regard to s.4A of the Tribunals of Inquiry (Evidence) (Amendment) Act 1997 as amended and the jurisdiction to apply for directions in relation to the Respondent's functions releasing the Applicant's costs
23) Damages
24) Such further or other order as this honourable court shall deem just to make
25) Costs’
The applicant is a deputy to Dáil Éireann for the constituency of Tipperary North and was Minister for Transport, Energy and Communications from December 1994 to November 1996.
The respondent is the sole member of the Tribunal of Inquiry into Payments to Messrs. Charles Haughey and Michael Lowry.
By a Resolution passed by Dáil Éireann on 11th September, 1997, and a Resolution passed by Seanad Éireann on 18th September, 1997, the Houses of the Oireachtas
(i) noted the ‘serious public concern arising from the Report of the Tribunal of Inquiry (Dunnes Payments) published on 25 August, 1997, which established that irregular payments were made to and benefits conferred on certain persons who were members of the Houses of the Oireachtas between 1 January, 1986, and 31 December, 1996’; and,
(ii) resolved that it was expedient that ‘a Tribunal be established under the Tribunals of Inquiry (Evidence) Act, 1921, as adapted by or under subsequent enactments and the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, to inquire urgently into and report to the Clerk of the Dáil and make such findings and recommendations as it sees fit, in relation to the following definite matters of urgent public importance:
…
e. Whether any substantial payments were made directly or indirectly to Mr Michael Lowry (whether or not used to discharge monies or debts due by Mr Michael Lowry or due by any company with which he was associated or due by any connected person to Mr Michael Lowry within the meaning of the Ethics in Public Office Act, 1995 or discharged at his direction), during any period when he held public office in circumstances giving rise to a reasonable inference that the motive for making the payment was connected...
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