Summary of Judgment

Factual and Procedural Background

The proceedings were brought by Company A (a representative association of optometrists) together with individual practitioners (collectively, the Plaintiffs) against Defendant 1 (the Minister responsible for social protection), Defendant 2 (the Minister responsible for health) and Company A (a public health body). The dispute concerned two statutory schemes (the Treatment Benefit Scheme ("TBS") and the Community Optometric Services Scheme ("COSS")) under which optometry services are paid by Defendant 1 by reference to fee scales. The Plaintiffs alleged delay and failure by Defendant 1 to complete a consultation process and make Regulations under section 42 of the Public Service Pay and Pensions Act 2017 ("the 2017 Act"), seeking declarations, an order directing completion of the consultations, and damages (including quantum meruit).

The Plaintiffs issued a motion on the same day as the plenary summons seeking an order directing Defendant 1 and/or Defendant 2 to complete the section 42 consultation forthwith. While the interlocutory motion was pending, Defendant 1 (with the consent of the Minister for Public Expenditure and Reform) made Statutory Instrument 24 of 2026 (the 2026 Regulations), resulting in increased TBS fees. The interlocutory motion became moot as a result. The sole issue for decision in this judgment was the allocation of costs of that interlocutory motion.

Legal Issues Presented

1. Whether and on what basis costs should be awarded in respect of an interlocutory motion that has become moot due to a supervening act (the making of the 2026 Regulations).
2. Whether the costs of the interlocutory motion should be awarded to the Plaintiffs, against Defendant 1, reserved to trial, or otherwise disposed of.
3. Whether a separate order for costs should be made in favour of Defendant 2 on the basis that she was improperly included in the motion.

Arguments of the Parties

Plaintiffs' Arguments

• The Plaintiffs contended that the making of the 2026 Regulations achieved the object of their interlocutory application and that an order for costs should be made in their favour.
• The Plaintiffs emphasised delay and a pattern of inaction by the Defendants in relation to the section 42 process, and maintained claims for damages that depend on that alleged delay.

Defendants' Arguments

• The Defendants contended that Defendant 2 (the health minister) had been improperly named as a respondent to the motion and should have her costs.
• As regards Defendant 1, the Defendants argued that no order should be made, or alternatively that costs should be reserved to trial or made costs in the cause, because the consultation process had, they said, concluded earlier and the subsequent Regulations were part of the statutory process rather than a concession.
• The Defendants emphasised that section 42 Regulations require the consent of the Minister for Public Expenditure and Reform and that that Minister was not a party to the proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge O'Connell analysed the question of costs against established propositions about mootness (derived from Murray J's analysis in Hughes). The court distinguished between: (a) cases where the substantive action is wholly moot, (b) interlocutory motions that concern issues not revisited at trial, and (c) interlocutory motions raising issues that will be revisited at trial. For the third category the authorities support reserving costs or making them costs in the cause to avoid pre-judging matters that the trial judge will be better placed to assess.

Applying that framework, the court found that the interlocutory motion had become moot because Defendant 1 made the 2026 Regulations, thereby achieving the practical objective of the motion. Crucially, however, the substantive proceedings were not disposed of: the Plaintiffs maintained claims for damages and alleged unlawful delay or failure by Defendant 1 in conducting the section 42 process. That overlapping substantive controversy remained for trial and could not be resolved fairly on the basis of the interlocutory materials.

The court rejected the proposition that the making of the 2026 Regulations should be treated as an admission that the interlocutory motion was well-founded. The competing factual and legal contentions about whether consultations had concluded earlier, and whether the Regulations were merely the exercise of statutory functions, were matters for trial. For those reasons, and to avoid risking injustice by allocating interlocutory costs prematurely, the court concluded that the proper course was to make the costs of the interlocutory motion costs in the cause as between the Plaintiffs and Defendant 1.

As to Defendant 2, the court concluded that no separate costs order should be made in her favour. Although the interlocutory relief could not have been ordered against Defendant 2, she was represented by the same legal team and the issue of her non-involvement did not appreciably add to the costs of the motion.

Holding and Implications

HOLDING: The costs of the interlocutory motion are ordered to be costs in the cause.

Implications:

• The order preserves the parties' rights to seek costs at the final hearing: if the Plaintiffs ultimately succeed at trial their costs of the interlocutory motion may follow that success; if the Defendants prevail, the converse will apply.
• No separate costs order is made in favour of Defendant 2.
• The decision does not decide the substantive merits and does not purport to create a new legal principle beyond applying established authorities on mootness and interlocutory costs.

Judge: Judge O'Connell