England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
HIS HONOUR JUDGE SIMPKISS

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th November 2010

Lord Justice Sedley:

1. This is an application made by Mr Zapello for permission to appeal. It is made by direction of Aikens LJ, following refusal of permission on the papers by Sir Richard Buxton. The appeal is to follow if permission is granted.
2. For reasons to which I now turn, we propose to grant permission to appeal, and what I now say is by way of disposal of the appeal.
3. The applicant, Mr Zapello, who appears before us in person, and his neighbour, a Mr Leedham, were not getting on. A complaint to the police by Mr Zapello against Mr Leedham was not acted upon. But Mr Leedham's complaint against Mr Zapello resulted on 8 July 2008 in the arrest of Mr Zapello and his detention for almost eight hours. He was finally released without charge.
4. Mr Zapello brought a civil claim, acting in person, for false imprisonment, seeking relatively modest damages -- £3,000, later reduced to £1500 -- but also seeking a finding if there was no apology. Simultaneously he went to the Independent Police Complaints Commission about the way the police had dealt with him. This arose principally from the fact that after his arrest it was realised that he was a vulnerable individual who had mental health problems. He had been held for some hours, first while social services were asked to send a responsible adult to sit in on his interview, then while police decided what to do when it became apparent that nobody could be sent by social services within a reasonable time.
5. We are not concerned with the merits of the case, but we must observe that the decision of a trainee police constable to arrest the applicant had been taken, it appears, before she even left the police station. There might well have been a finding that this was not something that could reasonably be considered necessary; but at trial, in a reserved and very careful judgment, HHJ Simpkiss concluded that nothing unlawful had in fact taken place, and there is no appeal before us against this finding.
6. The appeal before us concerns what happened thereafter in relation to costs.
7. The reserved judgment, which was sent out in draft, carried the standard rubric:

"The judgment will be formally handed down on a date to be notified by the court. The purpose of sending out this draft is to enable the parties to inform the court of any typographical errors and to discuss the form of the consequential order. If an agreed order is received by the court, not later than 12 hours before the notified hearing, then the parties need not attend the handing down of the judgment."

8. Although Mr Zapello had pro bono counsel at trial, he was a litigant in person even at that stage. At the conclusion of the hearing his counsel had asked proleptically for costs if she won, but that was all. Despite this, no attempt was made by the defendant, or those acting for the defendant, to contact Mr Zapello and secure his agreement to a costs order, nor was he put on notice that in default of agreement the defendant would attend the hand-down with counsel and ask for costs. The appellant was thus not present on 20 January 2010 when on hand-down counsel asked for costs. These the judge awarded in full without opposition. They amount, we are told, to something over £25,000.
9. Ms Dobie, to whom, I think I can say for all of us, we are indebted for her helpful and candid submissions, has sought to persuade us that the rubric to the judgment constituted sufficient notice to Mr Zapello that he was at risk as to costs and needed to attend if no agreement had been reached meanwhile. I respectfully disagree. The rubric reminds parties, especially represented parties, that they need to seek agreement on consequential orders and, by necessary implication, to identify areas of disagreement. In the absence of these steps it was not, in my view, correct for the defendant to attend hand down and, on the appellant's non-appearance, to seek an order. The most that should have happened was that the judge should have been told that there had been no contact, or therefore agreement, and have been asked to adjourn costs for submissions.
10. It follows, in my judgment, that the order which was made for costs has to be set aside and that this court must now make its own judgment as to the proper order.
11. We start, as Ms Dobie for the defendant rightly submits we should, from the presumption that costs will follow the event. As I have said, the event, whatever doubts we ourselves might have entertained about it, was that the appellant had lost and the defendant had won; but there was a prominent feature of the proceedings which, had it been drawn to the judge's attention, might well have changed his view, and which has certainly influenced us, in deciding what order to substitute. This was not the mere fact, which is not uncommon, that, concurrently with suing, the appellant had complained to the IPCC; it was what had happened between the IPCC and the Sussex Police up to the moment of trial and its potential relevance to their defence in the action.
12. The history is actually quite complicated, and I will have to be forgiven for picking out only what seemed to me its salient features. The claim form was issued on 6 January 2009. By then, in fact immediately after his arrest in July 2008, Mr Zapello had complained to the Sussex Police and to the IPCC about his treatment. Shortly after the issue of the claim Mr Zapello received a letter from the IPCC saying that his appeal had been upheld in relation to the police investigation of the complaint. In May his appeal was upheld against the police's reinvestigation of this complaint. This was conveyed by letter from the IPCC enclosing a full report and indicating that it was now going to supervise the police's further investigation of their own conduct.
13. The accompanying statement of findings quoted from a letter that had been sent to the Sussex Police in January 2009:

"I have reason to believe that Sussex Police should be looking seriously at the possibilities that the criminal offences of unlawful arrest and false imprisonment may have been committed in this case. This is not to say, at this time, that these offences had been committed. Because the officer subject to the complaint have not provided any accounts, and may not have received an opportunity to offer explanations for their decisions, drawing final conclusions about their conduct would not be fair at this point in the process.

Mr Zapello's allegation that the police did not make full enquiries into his report of a crime also needs to be investigated. Conclusions need to be based on the documented evidence that the force holds on that crime report, as well as on accounts from the officers about the actions they took. Any response to Mr Zapello must be specific, identifying what was done and the reasons for officers' decisions; it cannot be a generic response about the pressures that patrol officers must deal with in the course of their duties."

14. The findings were intended to deal with the unsatisfactory internal review both of the arrest and of the detention. They concluded (at page 61):

"On the basis of these findings I have decided to uphold the appeal.

ACTIONS REQUIRED OF THE FORCE/AUTHORITY

Sussex Police have not conducted an adequate investigation into Mr Zapello's complaints, and in the process the force has disregarded directions from the IPCC.

In the circumstances, further investigation is appropriate, but Sussex Police clearly cannot conduct further inquiries without the direct supervision or management of the IPCC."

15. Almost on the eve of trial, thanks to this pressure and to a further letter from the IPCC demanding action, the deputy Chief Constable wrote to Mr Zapello on 20 November 2009:

"It is my job ultimately as the Deputy Chief Constable of Sussex and the line manager of the Professional Standards Department to objectively review that report [the IPCC report] and to decide whether there are sufficient grounds to warrant any action against any police officer under our misconduct procedures. Just as importantly it is also my role to identify whether there are any developmental issues for the officers concerned or, indeed, for the organisation that has been identified as a result of the complaint.

Enclosed with this letter is the investigation report covering the specific complaint and you will see the Chief Superintendent Jones has concluded in two of the elements that your complaints are substantiated. His conclusion is that I/C/Superintendent Cliff Parrot should be subject to management action via discussion with me as line manger.

You will also be aware that following your successful appeal to the IPCC your original complaints have been investigated by Detective Inspector Emma Brice. As that particular complaint is supervised by the IPCC there will be a slight delay before we are in a position to pass you a copy of the relevant report.

I am satisfied that T/C/Superintendent Cliff Parrot has learned lessons from this particular complaint investigation and I am, indeed, sorry that as an organisation we did not comply with the direction from the IPCC sooner and move to resolve this matter."

16. Despite this partial (one might say very partial) acceptance of the justification of the appellant's complaints, the obscurity in which events at the police station on 8 July 2008 were still shrouded by the time of trial on 2 to 4 December 2009 stands in contrast to the fullness with which the defence was able to be pleaded and presented. Suddenly everything, or almost everything (the CCTV footage had been wiped), that was needed to exculpate the police officers was produced in evidence and testified about to the ultimate advantage and success of the Chief Constable in the proceedings.
17. After judgment the IPCC, on 26 April 2010, wrote to the Sussex Police to say that Mr Zapello's appeal had not been upheld. Ms Dobie contends that this amounts to a rejection of his complaint, but it is apparent from the elaborate findings in the accompanying report that this was because the police themselves had finally taken some action in the protracted course of their investigations. Since the report postdates the trial and costs order I will not quote directly from it, but I record that in the course of argument Leveson LJ asked Ms Dobie whether this report, had it been available to the parties before trial, might have made a difference to the claimant's or the defendant's attitude in the litigation. Her response was that one could not speculate about it. I am not so sure. While no one can say for sure what would have happened, it is clear that there would have been a sound possibility that had the defendant, as Chief Constable, accepted that his force had not conducted itself as in the IPCC's eventual view it should have done, and had he apologised, a trial might well have been avoided altogether. One notes, for example, that in preparation for the CMC in July 2009, the appellant's counsel had written:

"The Claimant is prepared to enter into settlement discussions.

In light of the fact that pocket notebook entries of PC's Brearley or Swan detailing their actions on 7^th and 8^th July 2009 have not been provided to the Claimant, despite such request, and the fact that the Statements of PCs Brearley and Swan were only provided to the Claimant at the beginning of July 2009, the Claimant seeks protection from the Respondent's costs up to the date of the CMC. In addition, the IPCC would appear to have experienced some difficulty in concluding the Claimant's complaint, due to no fault of the Claimant and as such the Claimant asserts that he had no alternative but to continue these proceedings in the County Court."

The same counsel was still acting pro bono at trial, and there is nothing to indicate that there was not at least a readiness on the appellant's part to compromise on honourable terms, if honourable terms had been offered.

18. As it emerged in the course of Ms Dobie's submissions, the reason why no such rapprochement was attempted was that, while civil litigation is conducted on the Chief Constable's behalf by outside solicitors instructed by a civil claims department, complaints are separately dealt with within the police force. This may well be so, but neither in law nor in practice is it acceptable for a public authority to fall back on the plea that its left hand does not know what its right hand is doing. We have to look at the defendant's establishment and functions as a single entity, and it is clear that as an entity the Sussex Police treated this litigation as something to be fought and won irrespective of what the IPCC had elicited (or was eliciting in a process reminiscent of drawing teeth) as having gone on or, to an extent, gone wrong.
19. In my judgment, had the IPCC been enabled by the defendant to reach the conclusions it did, not in April 2010 but in, say, November 2009, and if the defendant had, as was proper, fed these into his conduct of the claim brought by the appellant, there is every possibility that the claim would have been suitably compromised without the need of a trial. In fact, it seems to me that the same would follow even if one ignores what eventuated after trial in April 2010. The state of affairs in the later part of 2009, had those with conduct of the litigation known about it and made proper use of it, was in itself strongly conducive to compromise.
20. On this view, which I understand my Lords broadly to share, the expense of the trial was incurred as much through the defendant's fault as through the appellant's. While I do not say that it is the only permissible approach to where the costs should in the circumstances fall, it is in my judgment the preferable one; it sets no precedent; it simply responds as justly as I think can be done to the history of this particular case.
21. Since, for the reasons I have given, the incidence of costs is now at large before us, I would therefore, for my part, substitute for HHJ Simpkiss's order no order as to the costs of and connected with the trial below, and would allow the appeal accordingly.

Lord Justice Moses:

22. I agree and have nothing useful to add

Lord Justice Leveson:

23. In the exceptional circumstances outlined by Sedley LJ, I agree that this appeal should be allowed but I wish to underline that this decision should not be taken as a precedent for an argument in relation to the costs of actions against the police based upon the action or inaction of the IPCC. The regime surrounding the investigation of complaints against the police is not the same as the investigation of civil liability and damages and it would be an error to assume that one necessarily impacts upon the other.

Order: Application granted; appeal allowed