Michael Lowry says costs dispute with Moriarty tribunal settled more than decade after final report

The Independent TD for Tipperary, Michael Lowry, has said his long-running dispute over costs with the Moriarty tribunal has finally been resolved.

In a short statement on Saturday, Mr Lowry said a dispute over costs amounting to €2,869,338 “arising from representation on my behalf” before the tribunal has been resolved.

In 2018 the Court of Appeal granted Mr Lowry’s appeal against the decision in 2013 of the tribunal to award him only one-third of his costs. The court sent the decision as to what costs should be paid to Mr Lowry back to the tribunal for reconsideration.

The tribunal had originally decided to only pay the politician one-third of his costs because of findings of non-co-operation it made against him.

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The High Court had dismissed the former Fine Gael minister’s challenge to the costs decision which he then brought to the Court of Appeal.

Mr Lowry has now said the matter has been resolved and that he will not be commenting further.

“Although the delay in finalising this issue was inexcusable, unreasonable, and unfair, I am pleased with the final resolution and the discharge of the costs to those who represented me before the Tribunal,” he said.

The payments to politicians tribunal was established in 1997 and issued its final report in March 2011. Among its many findings were that Mr Lowry, as Minister for Communications, had interfered in the awarding of the State’s second mobile phone licence to Denis O’Brien’s Esat Digifone, and that there had been payments by Mr O’Brien to Mr Lowry that were “demonstrably referable” to Mr Lowry’s conduct in respect to the licence award.

Mr O’Brien and Mr Lowry said they did not agree with the tribunal’s findings.

Among the tribunal’s other findings were that Mr Lowry and his accountant, Denis O’Connor, had been involved in a “choreographed falsehood” that was “orchestrated by O’Connor and Lowry with the objective of misleading the tribunal” in relation to one module of the tribunal’s inquiries.

In its rulings on costs, the tribunal said it was important to distinguish between substantive findings – findings in relation to the matters covered in the tribunal’s terms of reference – and findings in regard to co-operation. People against whom negative substantive findings are made do not lose their entitlement to costs on that basis.

The Court of Appeal did not find that the tribunal was in breach of fair procedures in relation to its finding of non-cooperation by Mr Lowry but did find that it was unclear why the tribunal had fixed on the very substantial reduction in costs (two thirds) that it decided upon because of that finding of non-cooperation.

On the face of it, it said, it appeared the decision had been made to deprive Mr Lowry of part of the costs of representation at tribunal modules for which there was no allegation of non-cooperation. The reasoning behind this was hard to ascertain, it said.

Mr Lowry was represented at the tribunal by solicitors Kelly Noone and a number of different counsel, including the Attorney General, Rossa Fanning.

In its decision the Court of Appeal noted that the co-operation of Mr Lowry’s legal representatives with the tribunal had never been doubted. It said it was Mr Lowry’s position that the legal representatives had at that stage (2018) only been paid “a tiny, tiny fraction” of the fees that had been incurred a decade earlier.

It also said Mr Lowry’s submission had been that his accountant, Mr O’Connor, had brought a claim for approximately €1.7 million, the bulk of which related to tribunal work. Mr Lowry “does not have the means to discharge such a liability”.

In 2014 there was a brief legal dispute between Mr O’Connor and Mr Lowry over the payment of fees to the accountant, with the politician saying there was an oral agreement that the fees would be paid out of the costs he secured from the tribunal, with Mr O’Connor saying the fees were due from Mr Lowry because the tribunal had completed its work. The matter was settled on consent.

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