The High Court refused an application by Mr Justice Michael Moriarty, the sole member of the tribunal examining payments to Charles Haughey and Michael Lowry, to inspect affidavits filed in separate proceedings over accountant Denis O’Connor’s fees.
The application arose in Michael Lowry’s judicial review challenge to a 31 October 2013 decision awarding him one third of the costs of representation before the tribunal. The tribunal was established in 1997 and published its final report in March 2011. The judicial review itself was not decided in this judgment.
In his amended grounds, Lowry said his representation and related advice had cost very significant sums, potentially many millions of euro. He referred to O’Connor’s fee claims and to a High Court Master’s 8 November 2013 decision entering judgment for €625,000, with a further €1.09 million claim remitted to a plenary hearing. O’Connor was suing Lowry for unpaid fees.
Moriarty sought the pleadings and affidavits exchanged in O’Connor’s case against Lowry, under the court rules governing inspection of documents and the court’s inherent jurisdiction. Lowry objected. The court had already been given the Master’s order and the summary summons. The remaining request concerned eight affidavits: two that had been effectively opened before the Master and six that had not been opened in court.
Justice Costello held that the rules allowed inspection only where the relevant document was directly alluded to in pleadings, an affidavit or a list of documents in the proceedings where inspection was sought. The references in Lowry’s judicial review grounds to O’Connor’s case and the Master’s decision did not directly refer to the affidavits. The court therefore refused the application under the rules.
The court also refused to order inspection under its inherent jurisdiction. The authorities relied on concerned public access to documents opened without restriction in open court. Costello said that basis did not extend to the six affidavits that had not been opened. As for the two affidavits opened before the Master, any application for their release should be made in O’Connor’s case, with O’Connor given an opportunity to make submissions.
Costello stressed that the judgment did not indicate whether an order releasing those two affidavits should or should not be made. Moriarty remained free to seek access through another available legal channel.