Background
The Association of Optometrists Ireland and individual optometrists challenged the Minister for Social Protection’s conduct of statutory consultations regarding fee scales under the Treatment Benefit Scheme (TBS) and Community Optometric Services Scheme (COSS). The TBS traces to a 1999 agreement between the Association and the Minister’s predecessor. Following the 2009 Financial Emergency Measures in the Public Interest Act, fee scales were reduced and remained unchanged thereafter. The Public Service Pay and Pensions Act 2017 granted the Minister power to vary fees through regulations, subject to mandatory consultation within 30 days and consent from the Minister for Public Expenditure and Reform.
A Framework Agreement governing the consultation process was signed in May and June 2024. The parties disputed whether consultations concluded following a 3 October 2024 meeting or continued thereafter. No new fee scales were agreed or regulations made until the proceedings were issued on 30 May 2025. The plaintiffs sought an interlocutory order requiring the defendants to complete consultation forthwith. On 23 January 2026—before the motion was heard—the Minister made Statutory Instrument 24 of 2026, increasing TBS fees. Both parties acknowledged the motion had become moot, leaving only the question of costs.
The Court’s Holding
Justice Micheál O’Connell held that costs should be “costs in the cause”—reserved for determination at trial. The court applied established principles governing moot interlocutory motions, distinguishing between two categories: those addressing issues not revisited at trial (such as default of pleadings or discovery) and those addressing issues central to the substantive claim. Here, the motion sought an order to complete consultation, but the underlying dispute—whether the defendants unlawfully delayed or failed the consultation process—remains live in the plaintiffs’ claim for damages. Applying the principle from Keogh v AV Pound Co. Ltd [2021] IEHC 640, the court cautioned against prejudging such issues at the interlocutory stage, when only a provisional view of the merits has been formed on affidavit evidence.
The court rejected the plaintiffs’ reliance on Naughton v Governor and Company of the Bank of Ireland [2025] IEHC 124 (which awarded costs to a plaintiff whose interlocutory motion became moot) on the ground that Naughton involved facts rendering both the motion and the substantive action moot, with express findings on the merits that would not be revisited. Here, the trial judge—better positioned to assess the full evidence and pleadings—should ultimately decide where costs responsibility lies. The court also declined to make a separate costs order against the Second-named Defendant (Minister for Health), finding her involvement added no appreciable controversy to the motion.
Key Takeaways
- When an interlocutory motion becomes moot but the substantive issues remain for trial, costs should ordinarily be reserved rather than awarded immediately, to avoid prejudging matters not yet finally determined.
- The distinction between interlocutory motions addressing one-off procedural issues (which may be decided as moot matters in the round) and those addressing the substance of the claim (which will recur at trial) is material to the costs analysis.
- Statutory bodies seeking to resist costs orders in moot proceedings bear an evidential burden to demonstrate that changes in circumstances were external to the litigation, not a unilateral response to it.
- The making of regulations in accordance with a statutory scheme does not automatically amount to concession of a plaintiff’s case, particularly where the defendant maintains the underlying statutory process was properly followed.
Why It Matters
This judgment clarifies Irish procedural law on costs allocation when interlocutory relief becomes unnecessary before judgment. The decision reflects a principled approach to avoiding premature adjudication: where the same legal and factual questions will be fully litigated at trial, the interlocutory stage is not the appropriate occasion to decide costs. The court’s reasoning underscores that provisional assessments of merit at the interlocutory level—whether a serious issue to be tried exists, or a strong case has been shown—do not suffice to warrant a final costs order when the trial will comprehensively revisit those issues with fuller evidence and pleadings.
For practitioners, the judgment confirms that where an interlocutory motion is overtaken by events (such as a defendant taking the action the plaintiff sought), courts will scrutinize whether those events represent true concession or merely the performance of ordinary statutory duties, and whether the underlying controversy survives. The reservation of costs to trial protects litigants against the injustice of bearing costs of unsuccessful interlocutory applications when ultimate success on the merits at trial would ordinarily discharge such costs against the opposing party.