The Moriarty tribunal did not breach principles of fairness and equality when deciding to award Independent TD Michael Lowry just one third of his legal costs for his participation in the tribunal process, the Court of Appeal has been told.
Shane Murphy SC, for the tribunal, was making arguments opposing Mr Lowry’s appeal against a High Court finding the tribunal was correct to award him one-third of costs which he says run into millions of euro.
The appeal relates to the finding by the tribunal, which inquired into payments to politicians and related matters, that Mr Lowry has to pay the bulk of his costs.
Having heard final arguments on Wednesday, the Court of Appeal, comprising Mr Justice Sean Ryan, Ms Justice Mary Finlay Geoghegan and Mr Justice John Edwards, reserved judgment.
‘Litany of falsification’
Last year, the High Court dismissed his challenge to the costs decision after finding he engaged in “a litany of falsification and deception” – including falsification of a solicitor’s files – in his failure to co-operate with the tribunal.
Mr Lowry appealed, claiming, among other things that 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, Mr Murphy argued Mr Lowry’s counsel had invited the court to listen to the evidence which the tribunal used in coming to its decision.
It was not the court’s role to get into that evidence provided the decision maker, the tribunal, had acted in a clear and rational way, he said.
Forming an opinion
The decision-maker is statutorily authorised to form an opinion having heard the evidence over a number of years, at public and private hearings and the appeal court should be “very slow” to interfere with its findings, he argued.
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.
The question of equality did not apply because Mr Haughey took a different approach to the tribunal than Mr Lowry, counsel submitted. Mr Haughey took "a prove it approach" as had businessman Ben Dunne, who was also examined by the tribunal.
Mr Lowry, on the other hand, had created “a picture of complete and total engagement” with the tribunal.
That approach had led to the tribunal’s findings and was particularly important when assessing distinctions between the tribunal participants, he said.
Any fair reading of the affidavits provided to the court by the tribunal would show no breach of fair procedures or any discrimination, he added.
