Michael Lowry v Mr. Justice Michael Moriarty

 
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[2014] IEHC 602

THE HIGH COURT

[48JR/2014]
Lowry v Justice Moriarty
No Redaction Needed
Approved Judgment

BETWEEN

MICHAEL LOWRY
APPLICANT

AND

MR. JUSTICE MICHAEL MORIARTY (THE SOLE MEMBER OF THE TRIBUNAL OF ENQUIRY INTO PAYMENTS TO MESSRS. CHARLES HAUGHEY AND MICHAEL LOWRY)
RESPONDENT

2014/48JR - Costello - High - 17/12/2014 - 2014 32 9127 2014 IEHC 602

RSC O.31 r18

DUBAI BANK LTD v GALADARI (NO 2) 1990 2 All ER 738 1990 1 WLR 731 1989 EWCA CIV J1221-14

RSC O.31 r15

RSC O.31 r17

BBT CHARTED ACCOUNTANTS v LOWRY UNREP MASTER OF THE HIGH COURT 8.11.2013 [TRANSCRIPT NOT AVAILABLE]

ALLIED IRISH BANK v TRACEY (NO 2) UNREP HOGAN 21.3.2013 2013 IEHC 242

KELLY v BYRNE UNREP HOGAN 7.10.2013 2013/28/8257 2013 IEHC 450

CONSTITUTION ART 40.3.2

Civil Practice and Procedure – Notice to Produce – O. 31, r. 17 and r. 18 Rules of the Superior Courts – Discovery

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JUDGMENT of Ms. Justice Costello delivered the 17th day of December 2014

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1. The applicant seeks judicial review of a decision by the respondent dated 31 st October, 2013, to grant to the applicant one third of the costs of representation before the respondent in respect of the Tribunal of Enquiry into payments to Messrs Charles Haughey and Michael Lowry ("The tribunal"). The tribunal was established in 1997 and published its final report in March, 2011.

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2. In the Amended Statement of Grounds the applicant pleads that in appearing before the tribunal and in engaging adequate representation in relation to the tribunals of investigation the applicant incurred extremely significant costs in relation to his legal representation and the provision of ancillary financial advices and assistance in responding to the tribunal's investigations. At para. 24 it is pleaded:-

"Those costs have not yet been fully ascertained but it is expected that they will run into many millions of euro having regard in particular to the length of the Tribunal, the considerable assistance afforded by the Applicant to the Tribunal, the complexity of the matters investigated, the centrality of the Applicant to those investigations and his corresponding necessity to be fully involved in all the aspects of the Tribunal's work concerning those Terms of Reference that identified him".

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The next three paragraphs deal with the likely extent of his legal costs. At para. 28 he continues:-

"A further sense of the extent of the burden imposed upon the Applicant arising from the Tribunal's investigation of his affairs and his consequential representation costs can be gleaned from the documentation prepared by Mr. O'Connor, the applicant's accountant at the relevant time."

29) In support of claims for fees from the Applicant Mr Denis O'Connor has submitted summaries which he maintains correspond to work undertaken at the request of the Tribunal and/or in response to necessary representational work. These are located at tab 10. As there are legal proceedings in being in relation to Mr Denis O'Connor's claims for fees the Applicant reserves his position. Nonetheless, it can be readily seen that these summaries afford some understanding of the enormous extent of the positive cooperation undertaken by the Applicant in response to the Tribunal's many requests and the very considerable representation demands occasioned by the Tribunal's investigation.

30) Specifically, Mr O'Connor is at present suing the Applicant for non-payment of fees in relation to this role on behalf of the Applicant before the Tribunal and Judgment has been entered in the amount of €625,000 by a decision of the Master of the High Court in or about 08 November 2013 in proceedings entitled BBT Accountants v. Michael Lowry Record No. 2013/1777S. The balance of that firm's claim for fees being €1,090,000 has been remitted to plenary hearing. A copy of the Order of 08 November 2013 is located at tab 11.

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3. The applicant sought various categories of discovery from the respondent and issued a notice of motion seeking orders for discovery from the High Court dated 23 rd October, 2014. The matter was heard before McDermott J. and decision on the motion is awaited. The respondent did not seek discovery from the applicant.

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4. The respondent served a notice to produce dated 22 nd October, 2014, in the following terms:-

"TAKE NOTICE that the Respondent requires the Applicant to produce for inspection within seven days from the date hereof the following documents which are referred to in the Amended Statement of Grounds and Affidavits delivered on behalf of the Applicant and which the Applicant has hitherto...

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