IEHC 435 — IEHC 435 — High Court

APPROVED [2026] IEHC 435

2025 No. 3047 P

Between

ASSOCIATION OF OPTOMETRISTS IRELAND, FIONA KAVANAGH and RICHARD CREAGH

Plaintiffs

and

MINISTER FOR SOCIAL PROTECTION, MINISTER FOR HEALTH and HEALTH SERVICE EXECUTIVE

Defendants

JUDGMENT of Mr Justice Micheál O’Connell delivered on 3 July 2026

Introduction

1. This judgment relates to the costs of a motion seeking interlocutory relief which has

become moot. It became moot upon the making by the First-named Defendant, the

Minister for Social Protection, of a Statutory Instrument, the making of which was the

objective of the Plaintiffs in pursuing the relief sought on the motion.

2. The Plaintiffs contend that an order for the costs of the motion should be made in their

favour. The Defendants contend that the Second-named Defendant, the Minister for

Health, was improperly named as a respondent to the motion and should have her costs,

while as regards the First-named Defendant, they contend that no order should be made

or alternatively that the costs should be reserved to the trial of the action or made costs

in the cause.

1 Background

3. The First-named Plaintiff (“the Association”) is a representative association for

optometrists in Ireland, while the remaining Plaintiffs, all members of the Association,

are optometrists providing optometry services in Ireland. The proceedings are concerned

with two schemes whereby, to generalise, services are provided by optometrists

(including through corporate entities) to eligible members of the public in return for

payments made by the First-named Defendant based on certain fee scales. These

schemes are referred to as the Treatment Benefit Scheme (“TBS”) and the Community

Optometric Services Scheme (“COSS”). The motion the subject of this application is

primarily concerned with the TBS.

4. The TBS dates to an agreement between the Association and the First-named Defendant’s

predecessor in 1999, and optometrists subscribed to the scheme over time by executing

documents adhering them to it. The fee scales were altered periodically in the decade up

to 2009, but the effect of the Financial Emergency Measures in the Public Interest Act

2009 (“the FEMPI Act”) and Statutory Instrument 198/2009 – the Social Welfare

(Reduction of Payments to Health Professionals) Regulations 2009 (“the 2009 TBS

Regulations”) was – in the case of optometry services – to vary the fee scales in the TBS,

after which they remained unchanged for some time.

5. The Public Service Pay and Pensions Act 2017 (“the 2017 Act”) repealed the FEMPI Act

and, by section 42 thereof, empowered relevant Ministers (including, for present

purposes, the First-named Defendant), with the consent of the Minister for Public

Expenditure and Reform (now the Minister for Public Expenditure, Infrastructure, Public

Service Reform and Digitalisation) (“MPER”), to make Regulations inter alia varying

the fee scales in certain service agreements, including the TBS. Transitional provisions

2 were included in respect of regulations made under the repealed provisions of the FEMPI

Act.

6. The amounts or rates in the fee scales the subject of section 42 Regulations are based on

what the First-named Defendant considers fair and reasonable, having regard to the

matters that the First-named Defendant considers appropriate, including five specific

statutory criteria identified in section 42(10) of the 2017 Act. Under section 42(9) of the

2017 Act, the First-named Defendant is required, prior to making Regulations, to “engage

in such consultations as [the First-named Defendant] considers appropriate.” By section

42(12) such consultations are required to be completed within 30 days after the First-

named Defendant gives notice of the commencement of the consultations, and by section

42(13) the First-named Defendant is afforded significant latitude as to the manner in

which such consultations are carried out.

7. Section 42(14) of the 2017 Act provides:

“A Minister of the Government [i.e. the First-named Defendant in this case] may from time to time and shall, before 30 June in 2020 and every third year after 2020, carry out a review of the operation, effectiveness and impact of the amounts and rates fixed by regulation made by that Minister under this section and consider the appropriateness of those amounts and rates, having regard to any change of circumstances and in particular any alteration of any of the matters mentioned in subsection (10).”

8. The power to make Regulations pursuant to section 42 of the 2017 Act is without

prejudice to any existing rights of inter alia the First-named Defendant to “negotiate or

amend rates or contracts generally which that Minister or the public service body

concerned enjoys apart from [section 42]” and such existing rights may be “exercised in

conjunction with, in addition to or instead of the powers conferred by this section.” (see

section 42(11) of the 2017 Act).

3 9. As of 30 May 2025, when these proceedings were issued, no contractual rates had been

agreed, and no section 42 Regulations had been made. In the context of the motion and

in the application for costs to which this judgment relates, the Plaintiffs attributed the

delay squarely to the Defendants and emphasised its extent and a pattern of inaction on

the part of the Defendants in the face of repeated urgings by the Plaintiffs.

10. The evidence discloses that a document entitled “Framework Agreement” (“the

Framework Agreement”) was signed by the First-named Defendant on 29 May 2024 and

forwarded to the Association. The stated purpose of the Framework Agreement was to

set out an outline “process for engagement” that was compliant with competition law,

and which would frame the consultation process under section 42 of the 2017 Act, which

process would begin upon receipt of confirmation of acceptance of its terms by the

Association. The Framework Agreement was signed on behalf of the Association on 11

June 2024 and returned to the First-named Defendant’s Department.

11. Further communications took place between the First-named Defendant’s Department

and the Association in the months following, including a meeting between the First-

named Defendant’s Department and the Association on 3 October 2024. There is a

dispute between the parties as to whether – as the First-named Defendant contends – this

concluded the consultation process, or whether – as the Plaintiffs contend – the

consultation process continued thereafter and only concluded with the making of section

42 Regulations.

12. As noted earlier, the Plaintiffs commenced these proceedings on 30 May 2025, following

a warning letter from the Association’s solicitors dated 21 May 2025 demanding

publication within 7 days of a revised TBS fee scale, and a response from the Chief State

4 Solicitor’s Office dated 28 May 2025 declining the undertakings sought for reasons set

out in that response.

13. In the Plenary Summons and the Statement of Claim (the latter as amended and delivered

on 8 December 2025) the Plaintiffs seek multiple reliefs including various declarations

to the effect that the (then unchanged) fee scale constituted an unlawful imposition by

the Defendants, and each of them, of prices (under various headings) and a failure to

comply with the requirements of section 42 of the 2017 Act. The Plaintiffs also claim an

order directing the Defendants and each of them to complete the consultations in

compliance with section 42(12) of the 2017 Act. Importantly, the Plaintiffs also claim

awards of damages generally and damages quantum meruit arising from the pleaded

matters and events subtending the claims for declaratory and injunctive relief.

14. The motion for interlocutory relief issued on the same day as the Plenary Summons and

sought the following primary remedy:

“An Order directing the First and/or Second Defendants, or either of them, to complete the consultation commenced under section 42 of the Public Service Pay and Pensions Act 2017 forthwith and without any further delay”

15. A Defence has not yet been delivered in the proceedings, but the Defendants filed

replying affidavits for the purpose of the motion on 4 July 2025 and 7 July 2025

respectively. These emphasised, among other things, the arguments that the consultation

process had concluded in October 2024; that consideration of all matters (including the

consultation submissions) continued thereafter; and that section 42 Regulations could not

be made without the consent of the MPER, who was not a party to the proceedings.

Further affidavits were filed on behalf of the Plaintiffs on 6 August 2025 and on behalf

of the Defendants on 1 October 2025.

5 16. On 23 January 2026, the First-named Defendant, with the consent of the MPER, made

Statutory Instrument 24 of 2026 – the Public Service Pay and Pensions Act 2017

(Payments in respect of Optical Treatment Entitlements under the Social Welfare

Consolidation Act 2005) Regulations 2026 (“the 2026 Regulations”) – which resulted in

increases in the fees payable under the TBS, although the Defendants were at pains to

emphasise that the fee scales were set by reference to the process and might well have

been at the previous level.

17. Both sides in the proceedings accept that the motion for interlocutory relief is moot and

the remaining question pertains to costs.

Mootness, costs and interlocutory orders

18. Where a substantive action has in its entirety become moot, because of a supervening

event, and there will never be a determination of the substantive dispute between the

parties, the court may be required to decide, as best it can and without determining the

merits, whether the event which rendered the proceedings moot should nevertheless carry

costs consequences. The several judgments bearing upon the issue were analysed by

Murray J in Hughes v Revenue Commissioners [2023] 3 IR 393, from which he identified

“three broad propositions”, which I summarise as follows:

(a) First, in cases where the mootness results from circumstances outside the control

of either party, then – in general – no order for costs will be made.

(b) Secondly, where the mootness results from the unilateral act of one or more of the

parties, then – again in general – the costs will generally be awarded against that

party or those parties.

6 (c) Thirdly, in the case of a statutory body, additional care is necessary in identifying

whether the acts of that body are to be treated as a unilateral act for the purpose of

the previous proposition, because the regular exercise by that body of its normal

statutory functions in compliance with its statutory duties might – without

necessarily being a response to the bringing of proceedings – nevertheless render

those proceedings moot. In those cases, it is for the statutory body to put before

the court sufficient evidence to demonstrate that the change in circumstances was

external to the proceedings and not a unilateral act.

19. Different considerations arise, however, where it is not the substantive action, but an

interlocutory motion, which has become moot. A distinction may be drawn between two

types of interlocutory motion in this context. One type involves issues that will not be

revisited at trial, such as default of pleadings, motions for particulars or discovery and so

forth. In the case of those types of motions, the principles governing moot actions apply

reasonably comfortably to moot motions. However, the second type of interlocutory

motion involves questions that will be revisited at the trial of the substantive action –

classically motions seeking interlocutory relief to maintain, pending trial, a state of affairs

that is sought to be preserved on a permanent basis in the substantive action – and greater

care is required here. In hearing and deciding such an interlocutory motion, the court

would have formed only a provisional view of the merits, on affidavit evidence and

through the less precise lens appropriate to interlocutory relief, viz. whether a fair

question to be tried (or alternatively a strong case) has been shown. If the same issue is

later to be determined finally at trial, with the benefit of pleadings, discovery and full

evidence, the trial judge will ordinarily be better placed to decide where responsibility

for the costs of the interlocutory application should lie.

7 20. In such cases, where the motion is heard and determined, the authorities (e.g. Dubcap

Ltd v Microchip Ltd (Unreported, Supreme Court, 9 December 1997), AIB v Diamond

(Unreported, High Court (Clarke J), 7 November 2011) and ACC Bank plc v Hanrahan

[2014] 1 IR 1 (which applied the principles in the analogous context of an application for

summary judgment)) indicate that costs should ordinarily be reserved or made costs in

the cause. The reason for this approach is not merely procedural. It reflects the risk of

injustice in attributing costs consequences at an interlocutory stage by reference to an

issue which has not yet been finally determined. An interlocutory judge may have had

to decide whether there was a serious issue to be tried, or whether a strong case had been

established, but not whether the claim was ultimately well-founded.

21. Where an interlocutory motion of this kind has become moot before it is heard, and there

is no distinct feature of the parties’ conduct which itself justifies an immediate costs

order, and the substantive question arising will be revisited at trial, then the findings on

trial will provide the most reliable basis for allocating costs of that motion. The

alternatives – viz. seeking to ascertain who would have succeeded had the motion run,

and seeking to identify whether or not the mootness was caused by a unilateral act of one

of the parties – is comparatively imprecise and presents a greater risk of error.

22. The issue arose squarely in the case of Keogh v AV Pound Co. Ltd [2021] IEHC 640.

There, the plaintiff sought an interlocutory injunction restraining the continuation of his

suspension by the defendant, his employer, but the suspension was lifted before the

interlocutory application was heard. Allen J addressed the plaintiff’s arguments –

including that the change in circumstances was a unilateral act of the defendant in lifting

the suspension – as follows (at paragraphs 35 and 36):

8 “35. It seems to me that the plaintiff’s reliance on Cunningham v. President of the Circuit Court [2012] 3 I.R. 222 and Godsil v. Ireland [2015] 4 I.R. 535 is misplaced. In both cases the substantive dispute had been rendered moot: in Cunningham by the entry of a nolle prosequi in the criminal prosecution which the applicant sought to prohibit, and in Godsil by the repeal of the impugned provision of legislation. In Godsil the change in the legislation could be seen to have been an explicit acknowledgement of the validity of the challenge and in Cunningham the decision not to proceed with the prosecution had not been shown not to have been precipitated by the application for judicial review. Similarly, Hughes v. Revenue Commissioners [2021] IECA 5 was a case in which the legal basis for the plaintiff’s substantive claim has dissolved.

36. In this case, I quite accept that the plaintiff has a case to make that the lifting of his suspension and the cessation of the investigation were referable to his interlocutory application, but the defendant is adamant that the events were unrelated to the pending motion and that dispute is not one which the court can resolve at this stage of the proceedings. The problem identified by Clarke J. (as he then was) in Cunningham was that there would not be a decision on the substantive merits of the dispute. This is not such a case.”

23. Later in his judgment, having considered the judgment of Clarke J in Hanrahan (which

in turn considered inter alia Diamond), Allen J continued as follows (at paragraph 45):

“What this boils down to is that while the granting or refusal of an interlocutory injunction might be regarded as an event, it will often be necessary to look beyond the outcome of the motion to decide where responsibility for the costs should justly lie. The plaintiff’s motion not having been argued, it would be inappropriate to speculate as to what the outcome would have been if it had, or even to decide – as the defendant submits I should – whether the plaintiff had raised a fair issue to be tried. What can confidently be said, however, is that the outcome of the motion would not have been definitive of the question of costs. It seems to me that irrespective of what the outcome of the motion might have been, the resolution of the core dispute as to the lawfulness of the impugned clause and the defendant’s actions was one which would have had to go to trial. If the motion had been fought, the practical effect of the final determination of the matters in dispute might have been that the plaintiff would have secured interlocutory orders which he ought not have had, or might have failed to secure orders which he ought to have had. In my view, similar considerations apply in a case where the necessity for interlocutory orders can be said to have been overtaken by events between the time the application was made and the date on which the motion would otherwise have been heard.”

24. In the result, Allen J ruled that the costs be costs in the cause.

9 25. The Plaintiffs in the present case placed considerable emphasis on another judgment –

Naughton v Governor and Company of the Bank of Ireland [2025] IEHC 124 – in which

an interlocutory motion had become moot by virtue of acts of the defendants, and where

costs of an interlocutory injunction application were indeed awarded in favour of the

plaintiff. However, certain critical distinctions exist between Naughton and Keogh.

First, by way of context, the unilateral acts of the defendants in Naughton rendered moot

not only the interlocutory application but also the substantive action. The plaintiff had

contended that the defendant receiver had no authority to take possession or conduct a

sale of certain mortgaged property and issued proceedings and a motion for an

interlocutory injunction grounded in that complaint. While the motion was pending, the

defendant bank and the defendant receiver put in place an agency agreement that – as all

parties accepted – confirmed the receiver’s power to take possession and sell, and the

plaintiff advised the court that the substantive action, and not only the interlocutory

application, had been rendered moot. Secondly, the court made express findings on the

balance of probabilities – and not on the Merck or Maha Lingam tests – that the receiver

did not have power to enter upon or conduct a sale of the mortgaged property, findings

that were not going to be revisited at any trial of the substantive action. Keogh was not

mentioned in the judgment (perhaps it was not opened) but I have little doubt that it

would have been distinguished on the above grounds if it had.

26. Applying these principles to the present case, the motion sought an order directing the

First- and Second-named Defendants to complete the consultation process under section

42 of the 2017 Act. The motion has become moot because the First-named Defendant

has since made the 2026 Regulations. The making of the 2026 Regulations achieved, in

practical terms, the object of the interlocutory motion. However, crucially, it did not

dispose of the proceedings. The Plaintiffs maintain a claim for damages. That claim

10 depends, in substance, on the same alleged failure or delay on the part of the First-named

Defendant in commencing, conducting or concluding the section 42 process and in

making the 2026 Regulations.

27. This is not a situation in which the costs of the motion should be determined by treating

the making of the 2026 Regulations as, of itself, an admission that the motion was well-

founded. The First-named Defendant maintains that the consultation process had already

concluded and that the subsequent making of the 2026 Regulations was part of the

statutory process rather than a concession of the Plaintiffs’ case. The Plaintiffs, for their

part, contend that the making of the 2026 Regulations confirms the practical necessity

for the proceedings. That dispute is, in substance, part of the controversy which remains

for trial.

28. The trial judge will have to decide whether there was any unlawful failure or delay,

whether any breach of duty or other wrong has been established, and whether the

Plaintiffs have suffered compensable loss as a result. Those issues overlap directly with

the basis upon which the interlocutory relief was sought. They should not be pre-judged

on this costs application.

29. In those circumstances, I am satisfied that the just order as between the Plaintiffs and the

First-named Defendant is that the costs of the interlocutory motion should be costs in the

cause. That order preserves the position of both sides. If the Plaintiffs ultimately establish

their case, the costs of the motion should follow that success. If the Defendants succeed,

it follows that the motion was unnecessary or unjustified. That question will be

determined by the court best placed to assess the merits and consequences of the parties’

conduct.

11 30. Since an order making costs in the cause is an order for costs, it is not strictly necessary

to come to a conclusion for the purpose of Order 99 rule 2(3) as to whether it is or is not

possible justly to adjudicate upon liability for costs on the basis of the interlocutory

application; nevertheless, and for completeness, I am satisfied that it would create a risk

of injustice to make an order for costs in favour of either the Plaintiffs or the First-named

Defendant or to deprive both of those parties of the prospect of a costs order at this stage.

31. As regards the costs of the Second-named Defendant, the Minister for Health, I do not

consider that a separate order should be made in respect of those costs. While it seems

clear that the interlocutory relief sought could not have been ordered against the Second-

named Defendant, she was represented by the same legal team who had merely to point

out that she had no role to play in the making of section 42 Regulations. That issue does

not appear to have given rise to any appreciable controversy such as to have added to the

costs of the motion as it was.

32. In conclusion, I will order that the costs of the motion for interlocutory relief be costs in

the cause.

12