Zapello v Chief Constable of Sussex Police

This is a renewed application by Mr Simon Zapello for permission to appeal a costs order made against him by HHJ Simpkiss on 26 January 2010. There is also an application for a stay of execution of the costs judgment against him.

The application was refused on paper by Sir Richard Buxton on 2 June 2010. The substantive claim arose out of the arrest of the applicant on 8 July 2008 on suspicion of having committed criminal damage. The applicant was later released and not charged. He brought a claim against the respondent, the Chief Constable of Sussex Police, for damages for wrongful arrest and false imprisonment.

The applicant represented himself throughout the proceedings until a late stage, when the applicant was represented through the Bar Pro Bono Unit by Ms Gurden of counsel. The trial was before the judge alone. Immediately after the trial, Ms Gurden departed for the United States of America. The events which took place after the trial, which I will describe in a moment, were events which took place when Ms Gurden was out of the jurisdiction. I understand that she still is.

The trial before the judge took place for two and a half days starting on 4 December 2009. There were seven witnesses called on behalf of the respondents, and there was obviously considerable argument. The result of the trial was that the judge held that there was no wrongful arrest, no wrongful detention, and that such detention as there was was not for an excessive period. The claim was therefore dismissed.

The judge produced a draft judgment in writing which was circulated at some stage in early January 2010. It was proposed that this judgment would be handed down on 20 January 2010; indeed I have a judgment which is dated in manuscript by the judge as 20 January 2010. Mr Zapello says that at that stage he was meant to have had a hospital appointment so he would have been unable to attend that hearing. That hearing for the handing down of the judgment did not, Mr Zapello tells me, go ahead. Instead there was a hearing on 26 January 2010. Mr Zapello was not present at that hearing. He could not be, because he then had the hospital appointment that he was supposed to have had earlier but which had not actually taken place. It appears that counsel for the Chief Constable of Sussex Police was present at that hearing.

There is an order in the papers dated 26 January 2010. By that order the judge dismissed the claim and ordered that the claimant, Mr Zapello, was to pay the defendant’s, that is, the Chief Constable’s, costs of the proceedings, to be assessed by a detailed assessment if not agreed. There was a further order that the claimant was to pay £14,000 on account of costs within 21 days. Mr Zapello received that order. He was disappointed, to say the least, with the judgment and he wished to appeal it. He contacted the County Court office in Brighton and was, he tells me, told that he had to have an order from the County Court refusing permission, as it was assumed permission would not be granted.

It appears that this is exactly what happened because there is in the papers an order dated 15 February 2010 whereby the judge refused permission to appeal, and the order also states:

“Costs rightly followed the event.”

That suggests that there may have been some reconsideration of the costs issue. However, I am assured by Mr Zapello that there was no further hearing before the judge or any other consideration of arguments by him as to the issue of costs.

Mr Zapello submits that the judge’s order as to costs was not an order which should have been made. This is for various reasons concerned with the conduct of the police in the course of the proceedings and also in relation to complaints that Mr Zapello made to the Police Complaints Commission, which is dealt with to some extent in the judge’s judgment. The upshot of this is that Mr Zapello submits that the judge ought to have considered the issue of the conduct of the police under CPR 44.3 and should have made an order which took into account this conduct, so that the judge should not simply have ordered that costs should follow the event, as he did.

It appears to me that, on the basis of the information that I have been given by Mr Zapello, it may be that there has been an unfortunate procedural mishap in that Mr Zapello was not given the opportunity to raise arguments on the issue of costs before the judge. As well as that, it is possible, although I emphasise that it is no more than that, that there are serious arguments to be considered on whether the costs order made by the judge was a proper one.

In all these circumstances it seems to me therefore that the correct way to proceed with this case is to adjourn this application so that it can be considered with counsel for the respondent, the Chief Constable of Sussex Police, present counsel for the respondent should be in a position to deal with the chronology of events relating to costs which I have already described.

The matter therefore will be adjourned to a court of three Lords Justices; it will be on notice to the respondent, and at the same time, if the court on reconsideration of this matter considers that permission should be granted on the issue of costs, then the appeal in relation to costs should be dealt with at the same hearing.

In the meantime I am told by Mr Zapello that a charging order has been made on his property in respect of the £14,000 interim order for costs that was made for the judge. I grant a stay of execution on the costs order that was made by the judge in the meantime.

Accordingly this application will be adjourned. It will be heard by three Lords Justices; the appeal will follow if permission is granted. I estimate that the time that this will take will be half a day and there is no need for any specialist Lord Justice on this occasion.