The High Court has left the costs of an injunction application brought by the Association of Optometrists Ireland to be decided with the outcome of its wider case over State optometry fees.
Mr Justice Micheál O’Connell ruled on July 3 that the costs should be “costs in the cause”. In practical terms, that means whichever side ultimately succeeds in the main proceedings will normally recover the costs of the interlocutory motion as part of that result.
The Association, Fiona Kavanagh and Richard Creagh brought proceedings concerning fee scales under the Treatment Benefit Scheme and Community Optometric Services Scheme. Their interlocutory application sought an order directing the Minister for Social Protection and/or Minister for Health to complete a consultation process under section 42 of the Public Service Pay and Pensions Act 2017.
The proceedings were issued on May 30, 2025. At that point, the plaintiffs said no revised contractual rates had been agreed and no new section 42 regulations had been made.
On January 23, 2026, the Minister for Social Protection, with the required ministerial consent, made new regulations increasing Treatment Benefit Scheme fees. Both sides accepted that this made the injunction application moot because the practical objective of the motion had been achieved.
The optometrists argued that they should receive their costs. The defendants argued that no order should be made, or that costs should await the trial. The Minister for Health also sought her own costs, arguing that she had been improperly named on the motion.
O’Connell J held that the underlying dispute remains alive because the plaintiffs continue to seek damages based on alleged unlawful delay or failure in the section 42 process. Those issues overlap directly with the basis of the injunction application and will be determined at trial.
The judge therefore declined to decide now whether the making of the 2026 regulations vindicated either side’s position. He also refused a separate costs order for the Minister for Health, finding that her involvement had not materially added to the motion’s costs.