WONG HOI TANG ALEXANDER v. HOSPITAL AUTHORITY

HCPI 529/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 529 OF 1996

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J U D G M E N T

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1. On or about the 23 May 2000 I made a direction by consent that one aspect of the Plaintiff's claim for damages be tried as a discrete issue in advance of the claims for other heads of damage. This concerned the future care of the Plaintiff. There were in effect, three possible outcomes. One was the continuation of the status quo at the Tung Wah Hospital. The second was the status quo, supplemented or enhanced by any necessary facilities or provisions. The third (the Plaintiff's prime contention) was that he be transferred to a private hospital (St. Paul's being the selected one) with a regimen of medical and quasi-medical services provided on a private basis and co-ordinated by a consultant in private practice (or to home initially and at a later stage, possibly in five years' time, to St. Paul's.)

2. He has been at Tung Wah Hospital in the care of the Defendant authority since September 1993, over 8 years now. It has been the Defendant's contention that he should remain in its care with the present regimen supplemented, if the Court thought this necessary, in certain respects. The decision to be made by the Court had different implications in respect of the cost to be borne by the Defendant, and therefore the possible damages to be awarded under this head, if damages were to be awarded.

3. If the Plaintiff was to stay at Tung Wah being cared for under the regimen which had existed for a numbers of years, there would be no additional cost to the Defendant, much of that expense being in any event, absorbed within the running costs of the hospital. On the basis of the Court deciding that there should be supplementary services for that existing regimen, then extra cost would be involved, either by imposing an extra cost upon the Hospital for these additional services, or, if they were to be provided on a private basis, by an award of damages to the Plaintiff for the provision of these services for as long as was necessary. Finally, if the regimen of care was to be wholly on a private basis, in a private hospital, it would result in the award of a very substantial amount of damages to meet the cost of that. These alternatives would have been apparent to both parties from the outset.

4. On the 6 December 1999, the solicitors for the Defendant wrote to the Plaintiff's current solicitors referring to the 6th hearing of the Pre-trial Review on the 29 November 1999 when the question of the assessment of damages in two separate stages was raised. They wrote:

"The first stage would be the issue of whether it was in Wong Hoi Tang Alexander's best interests to continue to be cared for at Tung Wah Hospital or whether he should be transferred to a private institution. Depending upon the outcome of that first hearing there would then be a second hearing dealing with the costs involved in such future care, if provided on a private basis."

5. To that the Plaintiff's solicitors replied on the 18 February 2000:

"We basically agree with the approach mentioned in your letter of 6th December 1999 concerning the assessment of damages."

6. This agreement between the parties that the assessment of damages should be done in two stages was echoed by me in my judgment of 9 June 2000 following the Plaintiff's application (or rather that of his lawyers) that I should order a degree of discovery against the Defendant to enable an allegedly comparable costing exercise to be carried out. I said then:

"The position now is that with the agreement of the parties I am to deal with the question of damages in two stages."

7. There is nothing unusual in such an course. Order 33 rule 4(2) provides for one or more issues to be tried before others in an action. The English Court of Appeal has interpreted this provision on a fairly wide but entirely logical basis in Woodford & Ackroyd (A firm) v. Burgess [1999] Lloyds Reports P.N. 231.

8. Although the matter proceeded as a preliminary issue it might just as easily have proceeded as the final issue if the parties had been able to agree the remaining heads of damages which included the damages for pain and suffering and loss of amenity.

9. The essential issue for determination was therefore the Plaintiff's needs and whether the proposed regimen of care in a private hospital with ancillary services provided on a private basis was reasonable. If it was, I had to determine the damages in due course to meet this. If it was not and providing the Defendant's current regimen met the needs then there would be no award of damages under this head or heads.

10. As a discrete issue the Defendant was entitled to take such tactical steps to reach an agreement or compromise with the Plaintiff as it thought fit. It had been apparent to the Plaintiff's advisers for a long time that the Defendant was saying that the reasonable course which met the Plaintiff's needs was for him to stay at Tung Wah in the existing regimen supplemented, if appropriate, by any reasonable requirements which his advisers put forward.

11. On 20 August 1998 the Defendant's solicitors wrote to the Plaintiff's then solicitors an open letter. It appears that a number of "Without Prejudice" letters had been written to these solicitors but no positive response had been forthcoming. This letter then sought to put the Defendant in a position whereby it could properly, openly and sensibly, seek to compromise a substantial aspect of the Plaintiff's claim which had not, at that stage, been advanced with clarity:

"It is not clear from the pleadings what it is your clients seek with regard to long-term care."

followed by:

"It is in relation to the future care and accommodation ..... That matters become contentious."

12. The paragraph of direct relevance is the next one:

".... Our clients will, if your clients so wish, continue to provide long-term treatment and care ... at a Hospital under the management and control of the Hospital Authority. He will be kept in a private room. Presently he is in Tung Wah Hospital ......... If your clients find that Hospital inconvenient or inappropriate for any reason, our clients would be happy for him to be cared for in any other Hospital Authority Hospital that has facilities appropriate for long-term care such as is required [for him]. A senior medical officer would be in charge of his care ....... Advice would be obtained from dieticians, physiotherapists and occupational therapists as to the most appropriate treatment [for him]. If specialist medical treatment was necessary, this would be provided. This long-term treatment and care would obviously be at no cost to your clients.

You have in the past indicated that there are aspects of the care presently being provided by our clients that your clients considered inadequate or inappropriate."

[He was in a shared room and when his parents expressed concern about this he was transferred to a private ward for his (and their) exclusive use.]

13. The following paragraph put the onus fairly upon the Plaintiff's advisers to suggest what extra provisions they deemed appropriate if the present arrangement was not wholly satisfactory:

"The present arrangements for ..... care are in our clients' view appropriate and adequate. It would not at this stage be their intention to make any changes but they would accept however, that your clients' views are obviously matters in respect of which great attention should be paid to. Should your clients wish to take up our clients' offer but have reservations about any aspect of the care regime, we would invite you to inform us in what manner they consider the present arrangement unsatisfactory. This will enable us to go back to our clients and obtain instructions on whether they are prepared to change the existing arrangements to take account of the concerns expressed by your clients."

14. This was an eminently reasonable approach, unequivocally expressed in a carefully crafted letter. It called for careful consideration and a constructive response. It was an approach designed to limit the area of the litigation and achieve a compromise on a fundamental aspect of the claim. Implicitly it was an effort to limit or reduce the costs involved in such an aspect. They were likely to be substantial if that issue were to be fully litigated with a team of consultants and support staff on both sides.

15. The reaction of the Plaintiff's then Solicitors on 22 August 1998 was to say that they wanted the benefit of Counsel's views. That I regard as a reasonable reaction.

16. On 21 September 1998 Deacons wrote again referring to their letter of 20 August and reminding the Plaintiff's solicitors of their willingness to pay various items of special damages, in particular the hospital expenses. The letter was a reasonable effort to identify the items and indicate that they would be reimbursed. There was also encouragement to put the Plaintiff's claim in this respect on a proper basis. A meeting to sort the matter out was invited. In my view, given the need for parties to litigation to adopt a sensible, cooperative and costs-conscious approach, the attitude of the Defendant's solicitors was admirable.

17. A reply of 22 September 1998 welcomed the constructive approach of the Defendant's solicitors with regard to the clarification of the special damages. It did not however deal with the fundamental matter raised, namely the proposals for the Plaintiff's future care and accommodation. On 13 October, Deacons wrote asking that urgent consideration be given to the matter. By the same date Yung & Co. stated that they were going to be replaced by Messrs Wong & Yip (subsequently Cheung & Yip).

18. The new solicitors for the Plaintiff sought to postpone medical examination agreed by their predecessors with Deacons for, as far as I can see, no good reason. This action was already stale and progress needed to be made promptly. On 6 November 1998 I made various orders. They included that the Plaintiff was to file and serve an Amended Schedule of Damages setting out the course proposed for the future care and the particular institution concerned, by 4 December 1998 (wrongly printed in the order as 1999). This was what the Defendant's solicitors had invited in their letter of 20 August 1998. Several other orders were made relating to reports from neurologists and a dietician. I set a provisional date for the hearing of the assessment of damages on 19-21 April 1999.

19. On 3 December 1998 Messrs Wong & Yip wrote say that their Leading Counsel, only recently instructed, was of the view that the Plaintiff's claim had not been adequately formulated. This is what Deacons had been telling the predecessors of Messrs Wong & Yip. There was then a vague assertion as to "seeking evidence on various aspects of the claim including financial evidence which will govern the selection of the appropriate multipliers." No specific attempt was made to address of the letter of 20 August 1998.

20. I was persuaded on 29 January 1999 to vacate the hearing provisionally fixed for April and fixed the adjourned hearing of the Pre-trial Review for 19 April 1999. Had I known then the detail of the correspondence passing between the parties I would probably not have acquiesced in the extended timetable. As it was I had some concern about the way the action was proceeding as I reserved the costs of the hearing. No doubt I also hoped that, with a change of solicitors for the Plaintiff and the assurances of Leading Counsel, the action would proceed sensibly and swiftly over the next 21/2 months. Had I known the contents of the letter of Wong & Yip of 3 December against the contents of that of Deacons of 20 August 1998, I ought to have realised that the former was not addressing the latter's proposal, and that the Plaintiff's advisers were taking a course which, in effect, avoided the issue.

21. I had been presented with a skeleton argument by Leading Counsel for the Plaintiff at the hearing on 29 January, the contents of which persuaded me that it was right to pursue the course proposed by him. What is now apparent to me is that either counsel was entirely unaware of the earlier correspondence initiated by Deacons or that he had ignored it in his consideration. Although it had initially been addressed to the Plaintiff's former solicitors it is inconceivable that the new solicitors would have been unaware of it. They have never suggested that it was not in their possession in any of their correspondence.

22. The steps taken by the Plaintiff's solicitors resulted in the hearing of the assessment of damages being postponed further. In the meantime an interim payment into court of over $2.5m was made, the excess over $2m being past medical expenses incurred by the Plaintiff's parents. That excess was paid out to the parents by way of reimbursement. The Plaintiff's solicitors then applied, ex parte initially, for payment out of part of the remaining money in court, in order to provide for a regimen in a private hospital with all attendant ancillary services. It came initially before a Master who made an order, in part, in accordance with what the Plaintiff's solicitors sought. However I took the view that the Plaintiff's interests (the Court had a duty in this regard because he was under a disability) were at risk and ordered repayment of the money already paid out to the Plaintiff's solicitors. Furthermore the application was to be served upon the Defendant's solicitors in view of the basis of the application. It was to establish a regimen which was, in fact a highly contentious issue between the parties. It had been the subject of the correspondence commencing with Deacons' letter of 20 August 1998 and the Plaintiff's legal advisers had still not addressed the matter which they had been invited to. By implication however, it was now clear that the Plaintiff's advisers were pursuing a claim based on the provision of medical and ancillary services and care in the private sector. Their application should have been made to me in the first instance. Given my concern about this case and the state it had reached, the Plaintiff's solicitors should not have gone before the Master.

23. The Court's concern on behalf of the Plaintiff himself was that the course of action, ostensibly sought on his behalf, carried with it the risk of dissipation of a substantial part of his damages in pursuing that which a court might not say was reasonable. It also involved the possibility of raising false hopes or expectations which would only be aggravated if, after such a regimen had been established, the situation had to be reversed, or, the parents were left with an enormous financial burden which would not have to be met by the Defendant. From the Defendant's point of view there was the understandable risk of prejudice if a court were to be persuaded that once having been transferred to the private sector, it was in the Plaintiff's interest to stay there because the interests of the family were overriding factors. In my view, to have acceded to this application and permitted the establishment of an alternative regimen, when that was a fundamental issue between the parties, would have been irresponsible.

24. At this stage the battle lines seem to have been drawn. Counsel for the Plaintiff has not drawn to my attention any correspondence which displaces this conclusion on this aspect. The Plaintiff's advisers had rejected any opportunity to accept the Defendant's offer to supplement the existing care regimen by any reasonable addition for which the Defendant would bear financial (and supervisory) responsibility.

25. Accordingly as soon as the Appeal procedures had been exhausted following my judgment of 9 June 2000, which had been concerned with one aspect of the Plaintiff's advisers' pursuit of a claim for damages to represent the cost of the alternative regimen in a private hospital, preparations were made for the hearing at which I was to determine what was the reasonable and appropriate regimen. I had already invited the Official Solicitor to become involved because I was extremely concerned at the direction that this litigation was taking precipitated by the application for and the avowed purpose of the payment out of a substantial part of the interim payment to which I have already referred.

26. By the time the hearing came on, two carers working 12 hour shift to ensure round-the-clock supervision of the Plaintiff were already in place. The effect of this meant that the parents were entirely released from any necessary involvement in their son's care. This necessary involvement was to replace any necessary care or nursing service which they wished to perform themselves. They were of course free to participate in his care or provide whatever they wished. It relieved them also of any need, if there had been such, to stay in the hospital ward on a permanent basis.

27. This supplemental care and supervision operated in part from November 2000 possibly at the expense then of the Plaintiff's parents or so it appeared. More importantly the Defendant agreed in principle, to the provision of this supplemental service, as set out in their Answer to the Plaintiff's Revised Statement of Damages of 28 September 1999. At that stage it was agreed as a head of damage. Later came their proposal to provide that service at their own expense. Both parties had relied on the suggestion in the report of Dr Yu Yuk Ling instructed on behalf of the Defendant. Although Mr John Bleach S.C., on behalf of the Defendant, in his written submissions at §5(iv)(b) suggested that the Defendant had offered to provide such supplemental service in page 20 of the Defendant's Answer I do not think I can properly conclude that there was then an explicit or implicit offer to bear the cost of this, although I do accept that the way it was expressed was consistent with the Defendant's approach in its letter of 20 August 1998, over one year earlier.

28. Although I proceeded to the hearing by agreement of the parties, such a course falls in any event within the ambit of order 33 rule 4(2) as set out earlier. As it is a discrete issue, the parties are entitled to use any reasonable means of compromising that issue. Since the parties were far apart - the Plaintiff's advisers had, by all indications given, declined the Defendant's proposal for the future regimen and even a meeting to discuss it - the Defendant was entitled to use such means as existed in order to put itself on a sound footing as far as the risk of costs was concerned. A payment into court was clearly impractical. The only course was an open offer or undertaking. Since the result of my judgment (of 9 August 2001) was that the regimen encapsulated by the Defendant's offer and undertaking was the only reasonable course, the Defendant is entitled to an order for the costs of the hearing. The situation is covered by section 52A of the High Court Ordinance:

"The costs of and incidental to all proceedings.... in the Court ..... shall be in the discretion of the Court, and the Court shall have full power to determine by whom and to what extent the costs are to be paid."

29. If I were not to allow a Defendant its costs where it had succeeded on the discrete issue by making an offer or undertaking which mirrors the judgment, that would be a patently wrong exercise of the discretion. It would also make a nonsense of any court's proper desire and encouragement to parties to achieve a reasonable compromise.

30. The matters set out are in fact the answer to Mr Sarony's submissions on behalf of the Plaintiff that it is inappropriate to make an order for costs at this stage, and that since a payment into court in respect of this head of damages has not been made there can be no order for costs in favour of the Defendant. That submission was simply insupportable.

31. As Mr Sarony rightly states there will be a further assessment from which a money judgment will result. But the Defendant can protect its position in respect of the remaining heads of claim by a payment into court. Had the Plaintiff succeeded on the initial issue its claim would then have needed quantification, and the Defendant could then also have availed itself of the payment into court provision. That being so why should not the Defendant be able to offer or undertake to provide the very system which is decided to be reasonable and appropriate with the implicit backing of a costs order in its favour on the premise that it was doing all it could do to compromise this aspect of the action and reduce costs? In my view the course adopted by the Defendant was entirely realistic and practical and the success of its argument has ensured that a vast amount of costs, consequent upon the provision contentious expert evidence, has been avoided.

32. If this issue had not been "hived" of from the assessment of damages, a court, in exercising its discretion properly, would still have had to consider whether a Defendant who succeeded in its contention, as this Defendant has done, and had made the offer or undertaking at the outset, should have its costs of the issue as if it had been a separately tried, discrete issue. Not to have done so at the end of the day would have been a failure by omission on the part of the Court. I make it clear that I would, in that overall circumstance, still have made an order in favour of the Defendant for the reasons already given.

33. In all the circumstances, it is only just that the Defendants should have the costs of and occasioned by the hearing which resulted in their offer or undertaking being the course which I regarded as the only reasonable one in the Plaintiff's interests. I have also borne in mind the considerations of the English Court of Appeal's decision in Oksuzoglu v. Kay L. L. R. Med [1998] Pt. 4 p.129. Although in the context of this case, I would be reluctant to adopt Brooke L.J.'s phraseology "who essentially was the winner?" as a question a court should ask itself on the trial of a preliminary issue, his question is nonetheless apposite.

34. The order must be against the Plaintiff even though he is legally aided. Accordingly, applying section 19 of the Legal Aid Ordinance (Cap. 91) I may "make an order against an aided person in the same manner and to the same extent as (I) may make an order for costs ..... against any other person." Although this may appear to be inconsistent with order 62 rule 4(1) in so far as it excludes an assisted person from having such an order for costs made against it, as Mr Bleach rightly points out, this rule was taken directly from the old English rules (order 62 r. 8) and in any event the subsidiary legislation, being rules, is overruled by the primary legislation. These costs are therefore payable under section 16 (1)(b)(i) of the Legal Aid Ordinance by the Director of Legal Aid.

Should there be a 'forthwith order?

35. This having been a discrete issue I anticipate that the costs should be readily quantifiable. It is over three years since the Defendant made its then open offer in respect of the future regimen for this Plaintiff inviting a discussion with a view to a compromise on the aspect which was likely to incur most costs if it were to be unresolved. They had admitted liability in 1996. There had been significant delay on the part of the Plaintiff's former solicitors. There has been much delay since 1998 by the Plaintiff's current advisers. This case ought to have been resolved finally in later 1999 or early 2000 at the latest. It will not now be concluded, subject to any further appeals, until early next year. I see no reason why payment of these costs should be delayed for, potentially, an indefinite period, given this action's peregrinations. The Defendant has also paid a substantial part of the special damages and made, by agreement, an interim payment (into court). I have no hesitation in making the order for costs on a forthwith basis.

Should the basis be other than "party and party"?

36. I formed the clear view that the pursuit of a privately based and funded regimen for this Plaintiff was irrational. It was pursued having, it seems, wholly ignored the approach of the Defendant stemming from its solicitor's letter of 20 August 1998. Its pursuit was based on negligible evidence, some of which, when adduced, contradicted some of the points of criticism made against the hospital. Much of that criticism was itself unsubstantiated and should never have been made. It was also pursued against the views of a experienced reputable consultant neurologist who had been instructed by the Official Solicitor in the Plaintiff's interest. It may even have been inresponsible although in order to make such a finding I would need to examine correspondence and hear further argument, which I shall have to do in due course.

37. There is then, a clear argument for the basis to be indemnity costs or common fund costs.

38. The former basis contains a punitive element and I am extremely reluctant to order that costs should be on that basis when it is the Director of Legal Aid, as the holder of the public purse, who is to meet the bill.

39. The overriding factor, however, is my concern about the level of costs in personal injury cases in Hong Kong. In every case in which I have been able to conduct some form of inquiry, however limited, I have found costs excessive and often duplicated because of delay, for example. There are other reasons. The overwhelming majority of cases concerned are costs for successful Plaintiffs' actions, and I should be wary of adopting that as a criterion when approaching the question of the basis of costs for successful Defendants, whose momentum for the action is essentially controlled by the Plaintiff's desire for progress.

40. In this case, despite the validity of Mr Bleach's argument, I do not think it appropriate to order indemnity costs. That leaves the common fund basis. In normal circumstances, a Plaintiff under a disability, and one who is legally aided, would almost certainly, if successful in the action, obtain an order for costs on a common fund basis. The criteria are well-known. However, the numerous aspects of this action indicate that where this Plaintiff has obtained an order for costs, it is highly unlikely that any such order would be on a common fund basis. I say that with the expressed reservation because I have not heard argument about it, but it must be apparent from the way his action has been conducted and my earlier judgments, that there would be negligible if any merit in support of an order for costs against this Defendant on a common fund basis. I have decided, albeit with some reservation, not to order the common fund basis, but that the order should be on a party and party basis. I remain satisfied that such an order will nonetheless provide a proper, reasonable and fair level of costs for the Hospital Authority and that the Taxing Master will have the wide discretion to ensure that all proper steps taken on the Defendant's behalf to meet this aspect of the claim - the allegations involved a wide-ranging inquiry into almost every aspect of the care afforded by this hospital - will be fully provided for. I have also borne in mind that in rejecting the Plaintiff's appeals as being unarguable, both the Court of Appeal and the Court of Final Appeal made orders for the Defendant to have its costs on a party and party basis.

41. If I were to be persuaded at some future stage that an order for costs in favour of the Plaintiff should be on a common fund basis, I do not doubt that I would be reminded of what I have said earlier, and there would be justification for the Defendant reviving its argument that it should have a higher basis of costs than I have allowed in this decision.

The costs following the letter of 20 August 1998.

42. Having dealt with the costs' implications consequent upon the offer or undertaking made at the outset of the hearing, there remains the question of how I should deal with the costs in relation to the same issue following the letter of 20 August 1998.

43. Following that letter, I think it was reasonable to allow the Plaintiff's new solicitors some time to get to grips with the position at least in respect of that aspect of the claim. However, they never did reply constructively to that letter of invitation. From at least early December 1998 they were bent on building up the case which they advanced unsuccessully before me. They never responded directly to the Defendant's reasonable overtures.

44. It is difficult to equate the Defendant's approach directly to a payment into court or the undertaking made at the hearing although all the signs are that the Defendant would have met the supplemental cost which was included in their undertaking, and was accepted in principle in their Answer to the Plaintiff's Revised Statement of Damages.

45. I have decided that the 1 December 1998 is the latest date by which the Plaintiff's solicitors should have responded properly to the Defendant's open invitation. I make an order that there be no order for costs from 1 December 1998 up to the date of the hearing before me.

The costs orders reserved and others

46. Between January 1999 and November 2000, there was a number of hearings in respect of which I reserved the question of costs because I felt that, at the time of the particular hearing, matters were so unclear that I could not make a fair order.

47. The order in respect of the hearing on the 29 January 1999 was resolved in favour of the Defendant on the 19 April 1999.

48. The next occasion on which the costs were reserved was the 10 March 2000 when the Plaintiff's application for payment out of money in court (part of the interim payment) came before me. This as I have indicated earlier was a wholly misconceived application. All the circumstances now indicated that the proper order should be one in favour of the Defendants. I decided that the Official Solicitor should be invited to come into the picture.

49. On 17 March 2000, it was decided that I should visit both hospitals. This exercise was part and parcel of the necessary understanding of what the Plaintiff's advisers were contending was in the Plaintiff's interest. I also bear in mind that the Plaintiff's solicitors had not responded expressly or in any constructive way to the Defendant's solicitors' invitation in their letter of 20 August 1998. The Defendant should have its costs of that hearing too.

50. On May 23 a further hearing dealt with Mr Sarony's contention that the Hospital Authority should give full discovery to enable a comparative costings exercise to be carried out. I gave my ruling on the 9 June 2000. To the extent that my judgment did not make it clear I do so now by ordering that costs be to the Defendant in any event. I have recorded that on that occasion, I suggested that an inquiry should be made of the Hospital Authority as to the possibility of two nurses being provided for full time care either privately or at the expense of the Defendant. I was obviously not aware of the letter of 20 August 1998. The costs order will be in favour of the Defendant.

51. Finally on the 1 November 2000 the Plaintiff's solicitors renewed their application for a payment out to establish the private regimen. I ordered payment out of a lesser sum to represent damages due to the parents for their extra care over a number of years. That was without prejudice to the Defendant's contentions as to the necessity for and the extent of such parental care. I think the proper order is that there should be no order for costs.

52. There were also two ex parte applications - on the 30 August and 7 October - made to Master Cannon for a payment out of the interim payment into Court. Those applications should not have been made to the Master as I have said earlier. It was inappropriate. In my view the Master was misled in that she was not informed of the full background. Furthermore, they should not have been made ex parte and should in any event have been made to me. I vary the orders to ones of no order for costs in both cases.

53. The Plaintiff's solicitors appear to have failed to draw up a number of orders. Any outstanding omissions must be remedied forthwith.

The costs of the Official Solicitor

54. I need not reiterate at this stage the circumstances under which I invited the Official Solicitor to participate with, in effect, a "watching brief" in respect of the 'Plaintiff's' interests. I had concluded that his or his parents' advisers had lost sight of his interests and that the course being pursued in the litigation had little if any regard to the principles involved and to cost. Subsequent events have supported that conclusion.

55. Certain it is that this is not a case where the Defendant should bear any part of those costs. The Official Solicitor's costs will have to be borne in due course by the Director of Legal Aid and/or the Plaintiff's legal advisers and/or out of any funds recovered on behalf of and for the Plaintiff. That will necessarily be a difficult and possibly extended inquiry.

56. The inquiry will not of course be limited to the matter of liability for the Official Solicitor's costs. I shall have to determine as best I can, who is to bear the ultimate burden of the various costs orders against the Plaintiff, and to what extent, if any, any damages held in court for his benefit may be applied towards such costs. The court has the ultimate responsibility for safeguarding his interests.