Tribunal did not breach principles of fairness and equality in Michael Lowry costs decision, court hears

by Ann O'Loughlin

The Moriarty Tribunal did not breach principles of fairness and equality when it exercised its statutory duty in deciding to award only one-third of Michael Lowry's legal costs for the independent TD's participation in the tribunal process, the Court of Appeal has heard.

Shane Murphy SC, for the Tribunal, was making arguments opposing Mr Lowry's appeal against a High Court decision the Tribunal was correct to only award him one-third of his costs which he says run into the millions.

The appeal relates to the finding by the Tribunal into payments to politicians and related matters that Mr Lowry has to pay the bulk of his costs.

The Court of Appeal, comprising Justices Sean Ryan, Mary Finlay Geoghegan and John Edwards, reserved its decision.

Last year, the High Court dismissed his challenge to the costs decision because he engaged in "a litany of falsification and deception" - including the falsification of a solicitor's files - in his failure to co-operate with the tribunal.

Mr Lowry appealed claiming, among other things, he was treated differently from one of the other tribunal subjects, the late former taoiseach Charles Haughey, who was awarded his costs.

The Tribunal opposed the appeal.

In his submissions on the second day of the appeal, Mr Murphy argued that Mr Lowry's counsel had invited the court to listen to the evidence which the Tribunal used in coming to its decision. However, he said, it was not the role of the court to get into that evidence provided the decision maker, the tribunal, had done so in a clear and rational way.

The decision maker is statutorily authorised to form an opinion having heard the evidence over a number of years, at public and private hearings, he said. The appeal court should be very slow to interfere with the findings of the decision maker, he said.

Any evaluation of the Tribunal's approach to costs would demonstrate there was no violation, and there was particularly careful observance, of fair procedures, he said.

On the question equality, it did not apply because both Mr Haughey took a different approach to the tribunal than Mr Lowry. Mr Haughey took "a prove it approach", counsel said. Businessman Ben Dunne, who was also examined by the tribunal, took a similar approach, counsel said.

Mr Lowry, on the other hand, created "a picture of complete and total engagement" with the tribunal. But it was this engagement that led to the tribunal's findings and was particularly important when assessing distinctions between the tribunal participants, he said.

Mr Murphy also said any fair reading of affidavits provided to court by the Tribunal would show there was no breach of fair procedures or any discrimination.


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