The Court of Appeal has overturned the Moriarty Tribunal’s decision to award Michael Lowry one-third of his legal costs and sent the costs question back to the Tribunal for reconsideration. It dismissed his challenge to the underlying findings of non-cooperation.
The appeal concerned a specific costs ruling made on 31 October 2013. The Tribunal had ordered that Lowry recover one-third of his costs from the Minister for Finance, payable after taxation if not agreed. It based the reduction on findings that he had failed to cooperate with the inquiry and knowingly provided false information. The appeal did not reopen the Tribunal’s substantive findings on the matters it investigated.
The Court of Appeal held that Lowry’s challenge to the costs ruling was not out of time simply because he had not challenged the Tribunal’s report when it was published. The report findings and the later costs process were separate in purpose, the court said.
The court rejected his challenge to the non-cooperation findings. It said the Tribunal had given notice of the matters it was considering and an opportunity to make submissions. Although Lowry’s appeal raised detailed objections to the evidence and reasoning, the court found the high threshold for overturning a tribunal’s findings on judicial review had not been met.
The costs decision was different. The court found that Lowry had not been told in advance that the Tribunal was considering withholding two-thirds of his costs, what factors it would use to set the reduction, or how it would calculate it. The Tribunal’s general ruling and Lowry’s specific ruling were issued on the same day, so he had no advance notice of the general criteria.
The Court of Appeal said the Tribunal had recognised that no non-cooperation findings concerned the second mobile phone licence inquiry, and that Lowry was entitled to legal representation at those hearings. It was unclear why his costs for that work were reduced, or how the Tribunal arrived at the one-third figure. The court also said the seriousness of the conduct could not be used as a quasi-penalty in calculating costs.
The court allowed the appeal against the amount of costs awarded, ordered certiorari of the Tribunal’s 31 October 2013 costs order, and remitted the matter to the Tribunal to reconsider the costs in light of the non-cooperation findings and the principles in the judgment. It did not itself set a new costs figure.