The High Court has rejected Michael Lowry’s challenge to a Tribunal of Inquiry decision allowing him to recover one third of his legal costs. Mr Justice Hedigan delivered judgment on 27 January 2016, concluding that the judicial review application failed on all grounds.
The challenge concerned the Tribunal’s order of 31 October 2013, which allowed recovery from the Minister for Finance of one third of costs reasonably incurred for legal representation in work within the Tribunal’s terms of reference. The costs were to be taxed and ascertained if the parties could not agree. The Tribunal had found that Mr Lowry failed to cooperate in significant respects and knowingly gave false information, delaying its work.
The Court stressed that the judicial review was confined to the costs ruling. The Tribunal’s March 2011 findings of non-cooperation had not been challenged in time and could not be contested in these proceedings. The Court was therefore reviewing the legality and process of the costs decision, not deciding the merits of those earlier findings or conducting an appeal.
Mr Lowry argued, among other things, that withholding two thirds of his costs was unreasonable and disproportionate, that his cooperation in other parts of the inquiry was not properly credited, and that he had been treated inconsistently with Charles Haughey and Ben Dunne. He also challenged the fairness and evidential basis of the decision. The Tribunal maintained that the earlier findings and the opportunity given to Mr Lowry to make written submissions supported its decision.
The Court found a reasonable basis for allowing only part of the costs. It noted that the Tribunal made no non-cooperation findings concerning its GSM licence inquiry, but found that Mr Lowry’s involvement there was less central than in the money-trail inquiries. The Court accepted that the Tribunal could weigh that distinction alongside the seriousness of the earlier findings and the delay attributed to them. It also found a reasonable basis for distinguishing Mr Lowry’s case from those of Mr Haughey and Mr Dunne.
On procedural fairness, the Court said Mr Lowry had been given details of the matters the Tribunal intended to consider and an opportunity to respond, which he used in submissions. It found no requirement for a second hearing on costs. The Court dismissed the application, leaving the Tribunal’s one-third costs order in place. It did not make a new costs award in this judgment.