Circuit Court Judge Brian Curtin has yet to decide whether to appeal the High Court's dismissal of his challenge to the mechanism set up by the Oireachtas to investigate and gather evidence into his alleged misbehaviour.
Although he failed in his judicial review challenge, Judge Curtin was partially successful in his application for legal costs of the hearing when the matter came before Mr Justice Smyth yesterday.
If there is no appeal to the Supreme Court, Judge Curtin will not have to pay the legal costs of opposing his challenge which were incurred by the State or the select committee set up by the Oireachtas to investigate the alleged misbehaviour. But he will have to bear the costs of his own legal team of a solicitor, two senior counsel and a junior barrister.
Mr Justice Smyth also decided that Judge Curtin was entitled to his costs for an earlier application made on December 21st last year when he sought "leave" by way of judicial review to bring a challenge to the Oireachtas proposals. In relation to that one-day hearing, Mr Justice Smyth said he had been satisfied that the usual standard of proof required on such an application had been far exceeded by Judge Curtin and that substantial grounds had been advanced. Mr Justice Smyth said he had expressed the view at the time that it was a proper case for judicial review and had granted leave.
Although he had lost the judicial review hearing, Mr Justice Smyth said Judge Curtin was obliged by the rules of court to first make the leave application before he could effectively seek to establish his rights under the Constitution and the law.
In deciding that each side should meet their own costs of the judicial review hearing, Mr Justice Smyth said this was on the basis that, notwithstanding the successful opposition of the State and select committee in the action, both had had "a public benefit in a decision on a previously uncontested provision of the Constitution". However, Mr Justice Smyth added, he would put a stay on his costs order in the event of any appeal to the Supreme Court.