Michael Lowry v Mr. Justice Michael Moriarty

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice McDermott
• Judgment Date: 20 January 2015
• Neutral Citation: [2015] IEHC 39
• Date: 20 January 2015

Lowry v Justice Moriarty (Moriarty Tribunal)

JUDICIAL REVIEW

BETWEEN

MICHAEL LOWRY

APPLICANT

AND

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

RESPONDENT

[2015] IEHC 39

[No. 48 J.R./2014]

THE HIGH COURT

TRIBUNALS

Tribunal of inquiry

Costs of appearing before tribunal - Judicial review - Discovery - Whether applicant entitled to discovery of documents concerning costs orders made in favour of other persons having appeared before tribunal - Whether applicant entitled to discovery concerning communications regarding provisional findings of non-cooperation with tribunal in respect of other persons - Whether applicant entitled to discovery concerning interim discharge of legal costs of persons appearing before tribunal - Whether discovery sought relevant and necessary - Ryanair plc v Aer Rianta cpt [2003] 4 IR 264; Framus Ltd v CRH plc [2004] IESC 25, [2004] 2 IR 20; Compagnie Financiere et Commercial dit Pacifique v Peruvian Guano Company [1882] 11 QBD 55; O'Keeffe v An Bord Pleanála [1993] 1 IR 36; Carlow Kilkenny Radio Ltd v Broadcasting Commission [2003] 3 IR 528; Fitzwilton Ltd v Mahon [2006] IEHC 48, (Unrep, Laffoy J, 16/2/2006); Mac Aodháin v Éire [2010] IEHC 40, [2012] 1 IR 430 and O'Callaghan v Mahon [2007] IESC 17, [2008] 2 IR 514 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 31, r 12 - Tribunal of Inquiry (Evidence) Act 1921 (No 7) - Tribunals of Inquiry (Evidence) (Amendment) Act 1979 (No 3), s 6 - Tribunals of Inquiry (Evidence) (Amendment) Act 1997 (No 42) - Constitution of Ireland 1937, Arts 34 and 40 - European Convention on Human Rights and Fundamental Freedoms 1950 - Discovery granted (2014/48JR - McDermott J - 20/1/2015) [2015] IEHC 39

Lowry v Moriarty

Facts: In this case the applicant was granted leave to apply for judicial review and sought orders of certiorari quashing the respondent”s order of 31st 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 and, if necessary, a similar order quashing the ruling of the respondent in respect of the applicant”s application for legal costs. The applicant also sought declarations that: (1) The respondent acted ultra vires and/or unreasonably and disproportionately in withholding two thirds of the applicant”s costs; (2) The order was discriminatory; (3) There were insufficient reasons to render it equitable to deny the applicant the entirety of his costs or in the alternative, to award him one third of his costs of representation before the Tribunal; (4) The respondent 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, and/or the giving of false or misleading information to the Tribunal without affording the applicant a right to a fair hearing; (5) The applicant enjoyed a legitimate expectation that he would be awarded his costs of the distinct investigations, phases or modules of the Tribunal in respect of which no non-cooperation findings were made; and (6) The manner of the application and construction by the respondent of s. 6(1) (a) of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979 was contrary to the provisions of Bunreacht na hÉireann.

Held by Justice McDermott in light of the available evidence and submissions presented that the court would make an order for discovery of certain documents. The Court was satisfied that it was relevant and necessary that discovery be made by the respondent of the rulings and orders made in the case of the late Mr. Haughey and Mr. Dunne. Furthermore, the discovery order was extended to any costs ruling or order in respect of any other party represented before the Tribunal who was informed prior to the making of the order or ruling of the Tribunal”s intention to give specific consideration to matters which might constitute evidence of failure to cooperate with or provide assistance to the Tribunal, or knowingly give false or misleading information to the Tribunal and which orders or rulings contain a specific consideration of same. The Court further reasoned that it was not satisfied that it was relevant for a fair hearing and determination of the issues in this case that the wider relief claimed in respect of category one documents be granted. In respects of the category two and Three documents, it was further determined that these documents were not relevant to the issues to be determined and that it was not necessary for the fair trial of the issues between the parties that an order for discovery be made, having regard to the pleadings and evidence already available to the court.

TRIBUNALS OF INQUIRY (EVIDENCE) (AMENDMENT) ACT 1979 S6(1)(A)

CONSTITUTION ART 34

CONSTITUTION ART 40

TRIBUNALS OF INQUIRY (EVIDENCE) (AMENDMENT) ACT 1997

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S3

RSC O.31 r12(1)

RSC O.31 r12(3)

RYANAIR v AER RIANTA 2003 4 IR 264 2004 1 ILRM 241 2003/46/11374

FRAMUS LTD & ORS v CRH PLC & ORS 2004 2 IR 20 2004 2 ILRM 439 2004/18/4116

COMPAGNIE FINANCIERE ET COMMERCIALE DU PACIFIQUE v PERUVIAN GUANO CO 1882 11 QBD 55 48 LT 22

O'KEEFFE v BORD PLEANALA 1993 1 IR 39 1992 ILRM 237 1990/8/2141

CARLOW KILKENNY RADIO v BROADCASTING COMMISSION 2003 3 IR 528 2004 1 ILRM 161 2003/8/1686

KILKENNY COMMUNITY COMMUNICATIONS CO-OPERATIVE SOCIETY LTD v BROADCASTING COMMISSION OF IRELAND 2004 1 ILRM 170 2003/29/6939

FITZWILTON LTD & ORS v JUDGE MAHON & ORS (PLANNING TRIBUNAL) UNREP LAFFOY 16.2.2006 2006/24/4972 2006 IEHC 48

MAC AODHAIN v EIRE & ORS 2010 1 IR 417 2010 1 IR 430 2010/30/7571 2010 IEHC 40

O'CALLAGHAN v MAHON 2008 2 IR 514 2007/47/9902 2007 IESC 17

1 JUDGMENT of Mr. Justice McDermott delivered on the 20th day of January, 2015

2 1. The applicant was granted leave to apply for judicial review on 27 ^th January, 2014 (Peart J.), to seek orders of certiorari and various declarations as set out in an amended statement of grounds. The applicant seeks orders of certiorari quashing the respondent's order of 31 ^st 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 and, if necessary, a similar order quashing the ruling of the respondent in respect of the applicant's application for legal costs. The applicant also seeks declarations that:-

3 (a) The respondent acted ultra vires and/or unreasonably and disproportionately in withholding two thirds of the applicant's costs…having regard to the applicant's full cooperation in respect of the GSM module of the Tribunal of Inquiry and his "undisputed cooperation" in respect of substantial aspects of the "money trail" module of the Tribunal of Inquiry;

4 (b) The order was discriminatory in its terms having regard to previous costs orders made by the respondent, including but not limited to those made in respect of Mr. Charles Haughey and Mr. Ben Dunne;

5 (c) There were insufficient reasons to render it equitable to deny the applicant the entirety of his costs or in the alternative, to award him one third of his costs of representation before the Tribunal;

6 (d) The respondent 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, and/or the giving of false or misleading information to the Tribunal without affording the applicant a right to a fair hearing;

7 (e) The applicant enjoyed a legitimate expectation that he would be awarded his costs of the distinct investigations, phases or modules of the Tribunal in respect of which no non-cooperation findings were made, and;

8 (f) The manner of the application and construction by the respondent of s. 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.

9 A number of other declarations were sought which are not relevant to the application now before the court, in which the applicant seeks discovery pursuant to O. 31, r. 12 of the Rules of the Superior Courts of the following documents:-

" Category 1:"

(a) All costs orders of the Tribunal in relation to parties represented before it, including those orders where parties were granted other than their full costs;

(b) Any communications of the Tribunal to person/s represented before it notifying them of matters which may be material to the Tribunal's consideration of such person/s' application/s for costs, being matters which constitute or evidence a failure to cooperate with or provide assistance to the Tribunal or knowingly give false or misleading information to the Tribunal;

10 Category 2:

11 All documents and correspondence between witnesses (or their representatives) and the Tribunal relating to the provision of further evidence by those witnesses subsequent to the circulation of the provisional findings; and

12 Category 3:

13 All orders or documents relating to any arrangements whereby the Tribunal made interim arrangements with appropriate government departments to defray or discharge the costs of parties represented before it."

14 2. The relevant grounds advanced by the applicant in respect of the reliefs sought which are relevant to this notice of motion include grounds 73 - 77 in respect of the alleged discrimination by the respondent in dealing with the applications for costs made in respect of the late Mr. Charles Haughey and Mr. Ben Dunne in respect of Category 1. Furthermore, the applicant relies upon the grounds 84 - 86 inclusive relating to the alleged denial of a right to a fair hearing in making...