Zapello v The Chief Constable of Sussex Police

In an appeal concerned only with costs, a standard rubric accompanying a draft reserved judgment does not by itself notify a litigant in person that the successful party will attend hand-down and seek costs. If no contact or agreement has occurred, the proper course is to inform the judge and seek an adjournment for submissions. The presumption that costs follow the event remains the starting point, but the court may depart from it where conduct of the litigation materially contributed to the costs. A public authority must be considered as a single entity; internal separation between civil claims and complaints is not sufficient. The decision was confined to exceptional facts and did not establish that IPCC complaint handling determines civil liability or costs.

Zapello brought a claim against The Chief Constable of Sussex Police for false imprisonment following his arrest and detention. The Brighton County Court found that nothing unlawful had occurred and, at hand-down of its reserved judgment, awarded the defendant its costs in full.

The claimant was absent and had not been contacted about the proposed costs order. He appealed on costs only. The appeal also concerned information arising from his complaints to the Independent Police Complaints Commission and the relationship between that information and the defendant’s conduct of the litigation. The central issues were whether the costs order should be set aside and what costs order should replace it.

1. Permission and the original costs order. Permission to appeal was granted and the appeal was disposed of. The standard rubric attached to the draft judgment reminded the parties to discuss consequential orders, but it did not provide sufficient notice that the defendant would attend hand-down and seek costs from an absent litigant in person. In those circumstances, the defendant should have contacted the claimant and sought agreement or given clear notice of the intended application. If there was no agreement, the proper course was to inform the judge and ask that costs be adjourned for submissions. The costs order was therefore set aside.
2. Substituted costs order. The presumption that costs follow the event was the starting point because the defendant had succeeded at trial. However, the court was entitled to take account of the circumstances in which the litigation had been conducted. The IPCC process had identified shortcomings in the police investigation and had led to partial acceptance of aspects of the claimant’s complaints. The relevant information could have provided a proper basis for an apology or compromise before trial.
3. The defendant could not rely on the fact that civil litigation and police complaints were handled by separate departments. The defendant’s establishment and functions had to be viewed as a single entity. On the particular history, the expense of the trial had been incurred as much through the defendant’s fault as the claimant’s. The preferable and just order was therefore no order as to the costs of and connected with the trial below.
4. Qualification. Leveson LJ agreed with the result but underlined that the decision arose from exceptional circumstances. It was not to be treated as a general precedent for costs arguments in police litigation based on IPCC action or inaction. The IPCC complaint-investigation regime was distinct from the investigation of civil liability and damages, and one did not necessarily determine the other.

Order: Application granted; appeal allowed.

• Court of Appeal (Civil Division): Permission granted; appeal allowed. The original costs order was set aside and replaced by an order that there be no order as to the costs of and connected with the trial below.
• Brighton County Court: HHJ Simpkiss found that nothing unlawful had occurred and awarded the successful defendant its costs in full at hand-down, when the claimant was absent.