The High Court has ordered limited discovery in Michael Lowry’s judicial review challenge to a tribunal ruling that allowed him to recover one third of his legal costs. The decision, delivered by Mr Justice McDermott on 20 January 2015, concerns what documents must be disclosed before the judicial review is determined; it does not decide whether the costs ruling was lawful or discriminatory.
The Tribunal of Inquiry into Payments to Messrs. Charles Haughey and Michael Lowry ordered on 31 October 2013 that the Minister for Finance pay one third of Lowry’s legal costs, subject to taxation. The tribunal said it had found significant failures to cooperate and the knowing provision of false information, while also noting that it made no finding of non-cooperation concerning its inquiry into the second mobile GSM licence.
Lowry’s judicial review seeks to quash the costs order and obtain declarations including that the decision was discriminatory and that he was denied fair procedures. For this application, he sought discovery in three categories: tribunal costs decisions and related communications; correspondence about witnesses giving further evidence after provisional findings; and documents about interim arrangements to cover parties’ costs.
The court ordered disclosure of the costs rulings and orders concerning the late Charles Haughey and Ben Dunne. The order also covers rulings or orders for other represented parties where the tribunal gave advance notice that it would specifically consider possible non-cooperation or knowingly false or misleading information, and then addressed those matters in its decision. The court said those documents could help Lowry advance his case or damage the respondent’s case, without expressing any view on the merits.
The judge refused the broader request for all costs orders and related communications. He also refused discovery of documents about witnesses being recalled or providing further evidence after provisional findings, finding that the relevant correspondence was already available in the affidavits and exhibits and that the requested category was too broad and disproportionate. The request for documents about interim costs arrangements was refused because the court considered it irrelevant to the issues raised in the judicial review grounds.
The judgment therefore grants discovery only within the defined scope of the first category. The underlying judicial review challenge remained unresolved in this ruling.