Zapello v Chief Constable of Sussex Police

On a renewed application for permission to appeal a costs order, a possible denial of an opportunity to make submissions on costs, together with potentially serious arguments that the order was improper, justified an adjournment for reconsideration on notice. The respondent should be present to address the relevant chronology, and a full court should consider whether permission ought to be granted. If permission were granted, the costs appeal could be dealt with at the same hearing. A stay of execution was granted meanwhile, without determining the merits of the costs challenge.

The appellant’s claim for damages for wrongful arrest and false imprisonment was dismissed after a two-and-a-half-day trial in Brighton County Court. On 26 January 2010, the judge ordered the appellant to pay the respondent’s costs, including £14,000 on account. Permission to appeal was refused on paper by Sir Richard Buxton on 2 June 2010. The appellant renewed the application, arguing that the costs order failed to address alleged police conduct and that he had been unable to make submissions at the relevant hearing because of a hospital appointment. The issues were whether permission should be reconsidered with the respondent represented and whether execution of the costs order should be stayed.

Renewed application

1. The underlying claim had been dismissed after the trial judge found no wrongful arrest, wrongful detention or excessive detention. The judge ordered the appellant to pay the respondent’s costs and £14,000 on account.
2. The appellant argued that, under Civil Procedure Rules 44.3, the judge should have considered the police’s conduct and should not simply have ordered costs to follow the event. The appellant had not been present when the costs order was made and asserted that he had not been given an opportunity to address costs.
3. Lord Justice Aikens considered that there might have been an unfortunate procedural mishap. He also considered it possible that serious arguments existed as to whether the costs order was proper. He did not determine those arguments.
4. The proper course was to adjourn the renewed application on notice to the respondent, for consideration by a court of three Lords Justices. The respondent’s counsel could address the chronology of the costs proceedings. If permission were granted, the costs appeal should be dealt with at the same hearing.
5. Because a charging order had reportedly been made over the appellant’s property in respect of the £14,000 interim costs order, a stay of execution was granted in the meantime. The formal order was that the application be adjourned on notice.

1. Court of Appeal (Civil Division): On 18 August 2010, the renewed application for permission to appeal was adjourned on notice to a court of three Lords Justices, with a stay of execution granted meanwhile.
2. Court of Appeal (Civil Division): Sir Richard Buxton refused the earlier application for permission to appeal on paper on 2 June 2010.
3. Brighton County Court: On 26 January 2010, the claim was dismissed and the appellant was ordered to pay the respondent’s costs, including £14,000 on account.