EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Menzies Lord Bracadale	[2012] CSIH 88 XA156/07 OPINION OF THE COURT delivered by LADY PATON in the cause APOLLO ENGINEERING LIMITED Appellants; against JAMES SCOTT LIMITED Respondents: _______________

Proposer of two motions: G Politakis, director and shareholder of Apollo Engineering Limited

Appellants: No appearance

Respondents: Ellis QC; MacRoberts LLP

Amicus curiae: Springham

27 November 2012

Introduction

[1] The appellants ("Apollo") are currently engaged in an arbitration with the respondents ("Scott"). In the course of that arbitration, a case was stated for the opinion of the Court of Session in terms of section 3 of the Administration of Justice (Scotland) Act 1972. However Apollo's funds ran out. As a result Mr Politakis, a shareholder and director of Apollo, enrolled a motion seeking "a court order under Article 6 of the ECHR which would allow [him] to represent [Apollo] in any future court proceedings [and in] particular ... in relation to the forthcoming Stated Case procedure". Having heard a debate on 7 and 8 July 2011, this court ruled that Mr Politakis could not represent his company in court proceedings (Apollo Engineering Limited (in liquidation) v James Scott Limited [2012] CSIH 4).

[2] Mr Politakis now seeks leave to appeal that ruling to the Supreme Court. Further he wishes to move a motion which he had previously enrolled in June 2011 (and subsequently amended on 18 April 2012) in the following terms:

"Apollo Engineering Limited has no assets nor can it raise any further cash to instruct law agents and counsel. Apollo has now assigned to Mr Politakis the damages due by Scott. In line with the Minute of Sist and in terms of Article 6 and Article 1 Protocol 1 of the ECHR, I respectfully crave the court to (a) sist myself, Gabriel Politakis, in room and place of Apollo Engineering Limited in the overall action of James Scott Limited v Apollo Engineering Limited and in the current Arbitration proceedings (b) if the court refuses (a), then as an alternative to sist me as a party to the said action and arbitration and give me the authority to personally implement the suit against Scott."

[3] Scott opposed both motions. Scott also enrolled two motions, one for an award of the expenses of the hearing on 7 and 8 July 2011 against Mr Politakis personally, and the second, for dismissal of the Stated Case in respect that Apollo has no funds and will be unable to instruct legal representation for the main hearing which is expected to last 8 days.

[4] The court ex proprio motu invited Mr Politakis to make submissions, although not a party to the action.

Mr Politakis' motion for leave to appeal to the Supreme Court

[5] Mr Politakis moved the court to grant him leave to appeal to the Supreme Court. His application to represent his company in court had been much broader than the current Stated Case proceedings. He had sought a court order allowing him to represent Apollo "in any future court proceedings". Accordingly the decision in John G McGregor (Contractors) Ltd v Grampian Regional Council 1991 SC (HL) 1 did not present an obstacle, as his motion was not restricted to the Stated Case proceedings. The question at issue was important.

[6] Senior counsel for Scott submitted that it was not competent to appeal to the Supreme Court from Stated Case proceedings arising from an arbitration. Reference was made to John G McGregor (Contractors) Ltd, cit sup. In any event, this court's decision on 18 January 2012 was that, esto the court had the power to permit Mr Politakis to represent his company, the court would not have exercised that power in his favour, for the reasons set out in paragraphs [35] to [43] of Apollo Engineering Ltd (in liquidation) v James Scott Limited, cit sup. Accordingly any discussion about the nature and extent of the court's powers would be academic in this particular case, and by definition an unsuitable matter for the Supreme Court.

[7] The amicus curiae agreed with Scott's submissions, and also referred to Lord Hope's article on arbitration as revised in Release 17 (February 2012) of Macfadyen on Court of Session Practice, which confirmed that an appeal to the Supreme Court from such Stated Case proceedings was incompetent.

[8] Decision: leave to appeal to the Supreme Court: There is clear authority that there can be no appeal to the House of Lords or to the Supreme Court from any opinion of the Inner House in response to a Stated Case in terms of section 3 of the Administration of Justice (Scotland) Act 1972 (John G McGregor (Contractors) Ltd, cit sup and the article by Lord Hope in Macfadyen Court of Session Practice, Division J, Chapter 1, paragraph [3]). We agree with counsel for Scott and with the amicus curiae that this authority applies a fortiori to ancillary and interlocutory rulings within the Stated Case procedure. Mr Politakis enrolled his motion concerning his representing his company in the Stated Case procedure (process no X156/07), and his motion is, in our view, governed by John G McGregor (Contractors) Ltd, cit sup. For that reason alone, we refuse to grant leave to appeal to the Supreme Court. Further, however, it is our view that only matters raising an arguable point of law of general public importance should be sent to the Supreme Court. In the present case this court considered all the circumstances of the case and concluded that, even if it had the power to do so, it should not exercise that power by granting Mr Politakis' motion, for the reasons set out in paragraphs [35] to [43] of the opinion [2012] CSIH 4. Thus putting aside any question of the incompetence of an appeal, we would not have considered this an appropriate case in which to grant leave to appeal to the Supreme Court, as any discussion of the court's powers would in our view be academic to the outcome. We are not therefore prepared to grant leave to Mr Politakis to appeal to the Supreme Court.

Mr Politakis' motion to be sisted

[9] Mr Politakis relied upon several legal bases in order to justify his being sisted to the court and arbitration proceedings. (a) Apollo had granted him assignations of the claim dated 18 April, 28 May, and 11 June 2012 in place of the company. (b) In any event, the court should in the circumstances make an order sisting Mr Politakis as a party with authority to implement the suit against Scott. (c) Further, Mr Politakis should be sisted to the proceedings in his capacity as dominus litis. (d) Finally as a director of Apollo, he should be deemed to be part of the composite persona of Apollo, with in effect a power of attorney, and as such entitled to be sisted in place of Apollo.

[10] Assignations: Three assignations were made available to the court. The first, dated 18 April 2012, was signed by a Mr Tucker of 8 Wemyss Crescent, Troon. We were advised that Mr Tucker had assisted Mr Politakis in raising funds for the litigations, but that he had no connection with Apollo. Mr Politakis explained that Mr Tucker had been intended to be a witness to the deed. Mr Politakis was content not to attempt to rely upon that assignation.

[11] The two other assignations were in the following terms:

SUPPLEMENTARY ASSIGNATION

by

APOLLO ENGINEERING LIMITED

in favour of

GABRIEL POLITAKIS ESQ

May 2012

We, Apollo Engineering Limited ... (the Company) IN CONSIDERATION of part of the same sum of TWELVE THOUSAND FIVE HUNDRED POUNDS (£12,500) paid in relation to the Damages Assignation dated 18 April 2012 of which sum hereby [sic] acknowledge payment was made on behalf of the Company to the Arbiter, one John D Spencely CBE, by Mr & Mrs Politakis ... do hereby ASSIGN and MAKE OVER to Mr Gabriel Politakis the part of the sums due to the Company by James Scott Limited ... which are deemed not to be included in the Damages Assignation and we the Company grant warrandice; IN WITNESS WHEREOF

[Signed by G Politakis

28 May 2012]

ASSIGNATION

by

APOLLO ENGINEERING LIMITED

in favour of

GABRIEL POLITAKIS ESQ

April 2012

We, Apollo Engineering Limited .... IN CONSIDERATION of the sum of TWELVE THOUSAND FIVE HUNDRED POUNDS (£12,500) STERLING of which sum hereby [sic] acknowledge payment was made on behalf of the Company to the Arbiter, one John D Spencely CBE, by Mr & Mrs Politakis ... do hereby ASSIGN and MAKE OVER to Mr Gabriel Politakis the damages due to the Company by James Scott Limited ..., and we the Company grant warrandice; IN WITNESS WHEREOF

[Signed G Politakis

11 June 2012]

[12] Mr Politakis acknowledged that Scott's position was that the assignations were invalid and ineffective because of a prohibition against assignations contained in the parties' sub-contract. The relevant clause in the sub-contract was as follows:

"2 Execution of Sub-Contract work

... (e) The Sub-Contractor [Apollo] shall not assign the benefit of the Sub-Contract nor sublet the whole or any part of the Sub-Contract works without the prior written consent of Scott."

Mr Politakis contended, first, that as Scott were in repudiatory breach of the sub-contract, they could not rely upon Clause 2(e). Secondly and in any event, properly construed, the clause prohibited the assignation of the "performance" of the contract, but not the "fruits" or "benefit" of the contract (including the several million pounds owed to Apollo for its completed performance). Reference was made to the non-assignation clause in Flood v Shand Construction Ltd and others [1997] 81 BLR 31. Mr Politakis accepted that the Flood clause contained a proviso, namely:

" ... Provided always that the Sub-Contractor may without [the previous written consent of the Contractor] assign either absolutely or by way of charge any sum which is or may become due and payable to him under this Sub-Contract."

Mr Politakis submitted that a similar proviso must be implied in the sub-contract between Scott and Apollo. Accordingly the assignations were valid and were not struck at by the non-assignation clause. On the basis of the assignations, the court should allow Mr Politakis to be sisted to the proceedings in place and in room of the company, in terms of his motion.

[13] In any event, the court should make an order sisting Mr Politakis as a party with authority to implement the suit against Scott: Mr Politakis submitted that the court should take into account all the circumstances of the long-running dispute between Apollo and Scott, and against that background should in any event order that he be sisted as a party to the action and the arbitration, with authority personally to implement the suit against Scott.

[14] Dominus litis: Mr Politakis contended that, in any event, as a director of Apollo, he should be sisted to the court proceedings as dominus litis.

[15] Power of attorney: Mr Politakis explained that one recognised way of circumventing a non-assignation clause was the use of a power of attorney. He referred to an article entitled "Unassignable Rights" by Michael Bridge of the London School of Economics. A managing director such as himself in effect had a power of attorney from the company. Mr Politakis had also been placed in control of the company as a result of the Company Voluntary Arrangement. Accordingly the assignations did not bring a "third party" into direct contractual relations with Scott (which was what Clause 2(e) sought to prohibit). Mr Politakis as assignee could therefore enforce the company's claim in the name of the assignor Apollo.

Scott's submissions on the question of sisting Mr Politakis

[16] Senior counsel pointed out that there were several ongoing processes: (i) the original action James Scott Ltd v Apollo Engineering Ltd, raised in 1991 and sisted for arbitration in 1993; (ii) the arbitration; (iii) the Stated Case procedure, which had arisen out of the arbitration. Senior counsel submitted that it was clearly incompetent, within the confines of the Stated Case procedure, to seek to be sisted to other proceedings such as the original action, or to the arbitration proceedings.

[17] Assignations: It was denied that Scott had been in repudiatory breach. But in any event, accepting that the contract had terminated in some way, contractual clauses could survive such termination: cf Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 at pages 840-844. Exclusion clauses, arbitration clauses, and non-assignation clauses were normally intended to survive where one party claimed that performance was impossible because of repudiatory breach: cf Lord Justice-Clerk Ross at page 573 of Lloyds Bank plc v Bamberger 1993 SC 570. In the present case, the non-assignation clause was intended to regulate the parties' relationship notwithstanding the alleged repudiatory breach, for all the reasons given in Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85 at pages 102 to 109; Flood v Shand Construction Ltd and others [1997] 81 BLR 31; and James Scott Ltd v Apollo Engineering Ltd 2000 SC 228 (Lord Johnston). There were cogent commercial reasons why parties intended to have the ownership of the "benefit" of the contract governed by the contract despite alleged repudiatory breach. Consistently with that approach, the parties' contract contained a binding arbitration clause. The case of ANC Ltd v Clark Goldring & Page Ltd and another [2001] BCC 479 was distinguishable as the contract terms were to survive termination only if expressly said to do so, or by implication. Contracts very different from that of Apollo and Scott were dealt with in Bawejem Ltd and another v MC Fabrications Ltd and others [1999] BCC 157 and Ruttle Plant Hire Ltd v Secretary of State for the Environment and Rural Affairs [2008] BCC 790. Thus Scott's position was that the non-assignation Clause 2(e) prohibited the attempted assignations relied upon by Mr Politakis, and rendered them invalid and ineffective, a fortiori as the wording of Clause 2(e) did not justify a division into "performance" and "fruits or benefits".

[18] In any event the court should not make an order sisting Mr Politakis as a party: There was no legal basis upon which the court could rely to order that Mr Politakis be sisted as a party to the court proceedings. Any reliance on Article 1 of Protocol 1 was misplaced, as the claims were in Apollo's possession. As for Article 6 of the ECHR, this court's previous opinion dated 18 January 2012 considered and dealt with Article 6.

[19] Dominus litis: A company director was not a dominus litis: cf Eastford Ltd v Gillespie 2011 SC 501, at paragraphs [11] and [13]. In that context, it was noteworthy that Mr Politakis did not have the entire interest in the outcome: McCuaig v McCuaig 1909 SC 355. In any event, being sisted as a dominus litis would only give Mr Politakis an opportunity to speak in court on his own behalf about his liability for expenses: he could not speak on behalf of Apollo.

[20] Power of attorney: Mr Politakis and Apollo were undoubtedly separate legal personae: cf Secretary of State for Business, Enterprise and Regulatory Reform v UK Bankruptcy Ltd 2011 SC 115, and Linden Gardens Trust Ltd, cit sup. Any power of attorney (actual or deemed) gave Mr Politakis power to take executive steps for the company: but it did not authorise Mr Politakis to speak on behalf of the company in court.

[21] The court's ultimate discretion: Senior counsel submitted that, even if he were wrong in all the preceding arguments, the court should exercise its discretion when deciding whether or not to sist Mr Politakis to the court proceedings. The court should adopt the same reasoning as that contained in the Opinion of 18 January 2012, and should refuse to sist Mr Politakis for the reasons given.

Submissions of the amicus curiae on the question of sisting Mr Politakis

[22] Miss Springham adopted all of Scott's submissions, adding that unless some reason could be shown for not following Lord Johnston's decision in James Scott Ltd v Apollo Engineering Ltd 2000 SC 228, that decision should be followed. In relation to the question of a dominus litis, Mr Politakis's motion was misconceived: cf Eastford Ltd v Gillespie, cit sup. Even if Mr Politakis were to be sisted as dominus litis, his interest in proceedings would be restricted to the question of expenses: cf Nairn v South-East Lancashire Insurance Co Ltd 1930 SC 606 at page 615. He would not be able to address the court on behalf of the company.

[23] In relation to Article 6 of the ECHR, that matter had been thoroughly explored in the previous judgment dated 18 January 2012. No new issue arose. If the assignations were not valid, Mr Politakis had no civil rights to be determined. If the assignations were valid, the court had discretion whether or not to grant his motion. Strasbourg jurisprudence recognised that it was compatible with Article 6 if domestic law required an appellant to be legally represented before a Court of Cassation (an appeal court). Stated Case proceedings were equivalent to a Court of Cassation. Thus this court had an Article-6 compliant power to control the persons appearing before it.

[24] Even with the Woolf reforms, applicants in England could be rejected on the grounds referred to in paragraphs [35] to [43] of Apollo Engineering Limited (in liquidation) v James Scott Limited [2012] CSIH 4. One further matter of note was that any assignation by Apollo in favour of an individual would simply pass to that individual as assignee all the rights, powers, and obligations of the cedent (Apollo): cf Blyth Dry Docks & Shipbuilding Company Limited v The Commissioners for the Port of Calcutta 1972 SLT (Notes) 7. As Apollo had no right to appear in court without legal representation, Mr Politakis as assignee of Apollo inheriting all its rights, powers, and obligations, would be in the same position. In short, if the cedent required legal representation in court (as this court decided in Apollo Engineering Limited (in liquidation), cit sup) then the assignee, who could have no greater rights or powers, also required legal representation. Finally, esto the assignations in favour of Mr Politakis were valid, a fair balance had to be struck between the general interests of the community and the protection of an individual's fundamental rights: Broniowski v Poland (2005) 40 EHRR 495 at pages 540 to 549. Thus Mr Politakis' lack of experience, the complexity of the litigation, and the two prior arbitrations could be taken into account.

Reply by Mr Politakis

[25] Mr Politakis in reply stated that if he were not sisted and permitted to speak on behalf of Apollo, then there was a grave danger of an injustice or a miscarriage of justice. Scott were preventing Apollo from accessing justice. The court should either reverse its decision of January 2012, or sist Mr Politakis in place and in room of the company. It would take Mr Politakis only a day to explain why approximately £3 million was due and resting owing to Apollo. Mr Politakis renewed his motion to be sisted in place of the company. He reiterated that the non-assignation clause was no obstacle, for the reasons already given. In the light of discussion during the debate, he no longer insisted upon his motion to be sisted as a dominus litis.

Decision: whether to sist Mr Politakis

[26] The assignations: In our view, the non-assignation clause in the parties' subcontract continues to have effect, despite the termination of the contract. As explained in Linden Gardens Trust Ltd, James Scott Ltd v Apollo Engineering Ltd, and Photo Production Ltd, cit sup, clauses such as exclusion clauses, arbitration clauses, and non-assignation clauses, may be intended to survive a situation where one party claims that performance is impossible because of repudiatory breach: cf Lloyds Bank plc v Bamberger 1993 SC 570, per Lord Justice Clerk Ross. In each case, the question is one of the proper construction of the contract. In the present case, we are of the opinion that the non-assignation clause, Clause 2(e), was, on a proper construction of the contract, intended by the parties to continue regulating their positions even although one party claimed repudiatory breach: cf Linden Gardens Trust Ltd, Flood v Shand Construction Ltd and others, cit sup.

[27] Further, we are not persuaded that, on a proper construction of Clause 2, parties intended to differentiate between "performance" and the "benefits" or "fruits" of the subcontract. While there was an express proviso in the clause in Flood making clear that a party could assign the benefits or fruits (although being unable to assign the performance), no such language is used in the present subcontract, and indeed Apollo is expressly prohibited from assigning "the benefit" of the subcontract without Scott's written consent (cf the observations of Lord Browne-Wilkinson at page 105D-H in Linden Gardens Trust Ltd cit sup). While we were invited to hold that a proviso such as that in Flood must be implied in Clause 2, we do not consider that the tests for implying such a term (contradicting as it does the plain meaning of Clause 2(e)) have been satisfied.

[28] As for the Court of Appeal decision in ANC Ltd v Clark Goldring & Page [2001] BCC 479, that is, in our view, distinguishable. The particular contract in question contained a clause expressly providing that terms would continue after termination of the contract only if that was provided for expressly or by implication. Some clauses did so provide. That is not the case here.

[29] Accordingly in our view Clause 2(e), properly construed, is effective to prevent any valid assignation of Apollo's rights, powers and obligations under the subcontract being assigned to Mr Politakis: cf the conclusion reached by Lord Johnston in James Scott Ltd v Apollo Engineering Ltd 2000 SC 228. It follows that Mr Politakis' motion to be sisted to the court proceedings, so far as that motion is based on the assignations, falls to be refused. For completeness we should add that we agree with senior counsel for Scott that it is not possible for Mr Politakis to enrol a motion in the Stated Case proceedings seeking to be sisted in other proceedings such as the main action in the Court of Session, or the arbitration proceedings. We also add that we agree with the point made by the amicus curiae that, even if the assignations were valid and effective, they would place Mr Politakis in the shoes of the cedent: assignatus utitur jure auctoris. Thus if the cedent (Apollo) required legal representation for the purposes of appearing in a court or in an arbitration, then the assignee could not appear without legal representation.

[30] Whether the court should in any event make an order sisting Mr Politakis as a party: We see no basis in principle or precedent for this court to ordain that Mr Politakis be sisted as a party to the Stated Case proceedings or to any other proceedings with authority personally to implement the suit against Scott. Article 6 of the ECHR and the exercise of the court's discretion were issues considered and dealt with in Apollo Engineering Limited (in liquidation) v James Scott Limited [2012] CSIH 4. Any claim based on Article 1 of the Protocol to the ECHR would depend upon the assignations being valid and enforceable. As it is our opinion that they are neither (see paragraphs [26] to [29] above) this argument fails.

[31] Dominus litis: We agree with counsel's submissions on this matter, and note that Mr Politakis no longer insists upon that part of his motion seeking to be sisted to the court proceedings as a dominus litis.

[32] Power of attorney: It is accepted that Mr Politakis is a managing director of Apollo, and that he has for many years had executive control over the company (in effect similar to a power of attorney). However he is a separate legal person from the company and has to persuade the court that there is some legal basis upon which he should be sisted in place and in room of the company. The references to his position of executive power qua managing director, or officer in control as a result of the Company Voluntary Arrangement, cannot change that situation. Accordingly we are not persuaded that the court should sist Mr Politakis in place of Apollo.

[33] Conclusion: In the result therefore we refuse Mr Politakis' motion to be sisted to the court and arbitration proceedings.

Scott's motions for the expenses of the hearing on 7 and 8 July 2011, and the dismissal of the Stated Case

[34] Senior counsel for Scott submitted that it was a motion enrolled by Mr Politakis which caused the 2-day hearing in July 2011. Mr Politakis had been unsuccessful (Apollo Engineering Limited (in liquidation) v James Scott Limited [2012] CSIH 4). The normal rule should apply, and expenses should follow success. It was competent to award expenses against someone who was not a party to the action: Macphail, Sheriff Court Practice (3^rd ed) paragraph 19.03; Brownlie v Tennant & Company (1855) 17D 422 at page 425 ("every litigant" - not "every party" - being subject to the power of the court in relation to expenses); Thomson v Edinburgh and District Tramway Company Limited (1901) 3F 355 at pages 357 to 358; Moore v The Scottish Daily Record and another 2009 SLT 27 paragraph [14]. By lodging the Minute of Sist, and bringing a motion for sist to court, the pursuer became a "litigant" in that he put something forward in a litigation, and he caused expense (cf Brownlie, cit sup)

[35] Senior counsel accepted that Scott's motion for dismissal of the Stated Case became relevant only if Mr Politakis were to be unsuccessful in both his motions (for leave to appeal to the Supreme Court, and to be sisted in place of the company). In that event, counsel invited the court to dismiss the Stated Case. Apollo had no legal representation. It had been made clear over a considerable period that Apollo could not afford such representation. The whole basis of the 2-day hearing in July 2011 was that there was no option but that Mr Politakis should represent the company. The terms of the motions enrolled by Mr Politakis stated that the company had no assets or funds. For example, the motion enrolled in February 2011 (which led to the hearing in July 2011) stated in paragraph 8 that Apollo was insolvent and could not afford to pay for legal representation. The motion enrolled in June 2011 (to sist Mr Politakis in place of the company i.e. one of the motions currently being heard) stated that Apollo had no assets and could not raise any further cash to instruct law agents and counsel. The Minute of Sist lodged by Mr Politakis stated in paragraph 33 that the company had "zero assets" and could not afford to pay for legal representation. If Mr Politakis were unsuccessful in the two motions currently before the court, no-one would appear on behalf of Apollo at the substantive hearing. No-one would be able to explain Apollo's position. The Stated Case contained questions proposed by Scott (designated by the addition of the capital letter "A"): but Scott did not wish to insist on their questions if there was no appearance for Apollo. Scott's questions were relevant only in the event that Apollo's questions were insisted upon. The arbiter's draft opinion had made clear that he intended to dismiss all of Apollo's craves (debated before him by a solicitor-advocate acting for Apollo) with one exception concerning materials remaining on the site. Thus Scott did not require to insist upon the Stated Case in the event that Apollo did not appear, and it would be better and more expeditious to refer matters back to the arbiter.

[36] In answer to a question from the bench, it was conceded that it might be thought logical and reasonable to await the substantive hearing in the Stated Case procedure; or to fix a substantive hearing and put the case out By Order some two months prior to the hearing in order to assess the circumstances. But the fact was that it had been frankly and consistently acknowledged that Apollo did not have the funds or assets necessary for any litigation or arbitration, and was not likely to have such funds or assets in the future. That was the reason underpinning Mr Politakis's motions to be allowed to represent Apollo in future proceedings. In those circumstances, the Stated Case should be dismissed.

[37] Mr Politakis opposed both of Scott's motions. Scott had in effect embezzled £400,000 due and resting owing to Apollo. The main contractor in 1993 had ear-marked £400,000 paid to Scott to be passed on to Apollo. Apollo had never received it. If the court would allow Mr Politakis to be sisted in place of the company, he intended to by-pass the Stated Case, enrol a motion for the dismissal of the arbiter, and make a "part-award" application in the arbitration. There was no need for the Stated Case. Meantime however the Stated Case should not be dismissed, but should remain in the background in case the court did not permit Mr Politakis to speak on behalf of Apollo. Matters could be progressed if the court either (a) ordained Scott to pay Apollo the £400,000 due; or (b) allowed £35,000 which had been lodged by Quantum Claims on behalf of Apollo as caution in the Stated Case process to be released to assist with the funding of Apollo's case and to permit counsel to be instructed. If the court were to grant Scott's motion for expenses against Mr Politakis personally, that would bankrupt him, and he would be unable to speak in court. That was of course Scott's aim: to bankrupt him so that he could not represent Apollo, and thus to stop any progress in the case. Mr Politakis reminded the court that, in the event of decisions adverse to his interests, he still had the right to address the Supreme Court and the court in Strasbourg.

[38] After the debate in court, the amicus curiae provided additional written material on the question whether it might be competent to award expenses against someone who was not a party to the action. Such additional material would normally require discussion at a By Order hearing. However on the view which we have taken on the question of expenses (see paragraphs [39] to [41] below) it has proved unnecessary to explore that question further.

Decision: (i) the expenses of the 2-day hearing in July 2011 and (ii) whether the Stated Case should be dismissed

[39] Apollo is the party to the litigations and the arbitration, not Mr Politakis. Apollo's lack of funds and resultant inability to instruct legal representation was the underlying cause of the 2-day hearing in the Stated Case proceedings on 7 and 8 July 2011. We note that £35,000 was lodged as caution on behalf of Apollo in the Stated Case process. In our opinion, as Scott have been successful in the 2-day debate, the most equitable ruling in relation to expenses would be to find Apollo liable to Scott in the expenses occasioned by the hearing on 7 and 8 July 2011, such expenses being met out of the sum held as caution. We propose to adopt that course.

[40] In relation to Scott's motion for dismissal of the Stated Case, Mr Politakis has been unsuccessful in his endeavours to represent Apollo in legal proceedings. Apollo currently has no funds or assets whereby legal representation could be obtained, and appears highly unlikely ever to acquire such funds or assets. In all the circumstances, including Mr Politakis' candid acceptance before us that Apollo's financial circumstances had not changed, we consider that at any future hearing Apollo will be unrepresented and will be unable to move or oppose motions, make submissions, answer questions from the court, or take any other effective steps in the proceedings. That being so, it seems to us fruitless to permit the Stated Case proceedings to continue. We shall therefore dismiss the Stated Case.

Decision

[41] For the reasons given above, we refuse Mr Politakis leave to appeal to the Supreme Court. We refuse his motion, enrolled in June 2011 and amended on 18 April 2012 (a) to sist him in room and place of Apollo or alternatively (b) to sist him as a party to the court and arbitration proceedings specified in the motion. We find Apollo liable to Scott in the expenses of the two-day hearing on 7 and 8 July 2011, such expenses to be paid out of the sum held as caution for Apollo. We make no finding of expenses against Mr Politakis personally. We dismiss the Stated Case, reserving meantime any question of expenses in that process insofar as not already dealt with, to enable the court to be addressed on that matter if necessary.