FIRST SECTION

DECISION

Application no. 22061/15 APOLLO ENGINEERING LIMITED against the United Kingdom

The European Court of Human Rights (First Section), sitting on 2 July 2019 as a Committee composed of:

Aleš Pejchal , President, Tim Eicke, Raffaele Sabato, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 28 April 2015,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The case originated in an application (no. 22061/15) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a limited company registered in the United Kingdom, Apollo Engineering Limited (“the applicant” or “Apollo”), on 28 April 2015.

2. The applicant, who had been granted legal aid, was represented by Mr A. Mustakim and Mr J. Sarker , lawyers practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Gaughan .

3. On 17 September 2015 the complaints concerning Article 6 were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. On 24 November 2017 further observations after communication were requested pursuant to Rule 54 § 2 (c) of the Rules of Court.

A. The circumstances of the case

4. The facts of the case, as submitted by the parties, may be summarised as follows.

5. The applicant is a company registered in Troon, Scotland. Its majority shareholder, Mr G. Politakis , owns 90% of the shares. He represents the company before the Court. The other shareholder is Mr Politakis ’ s wife, who owns the remaining 10% of the shares.

1. The litigation between Apollo and Scott

6 . In February 1990, the applicant entered into a contractual dispute with a sub-contractor, James Scott Limited (“Scott”), over a contract worth some GBP 4-5.5 million. The non-resolution of that dispute forced the applicant into liquidation in September 1991.

7. Litigation began in October 1991 between Scott and the liquidators of Apollo in the Court of Session, which was sisted (adjourned) in June 1993 pending arbitration.

8 . An arbiter was appointed jointly by both parties and it appears that various procedures then took place in the course of the arbitration proceedings, including adjustment of the parties ’ pleadings, legal submissions and attempted settlement negotiations. The arbitration had not been concluded before the original arbiter retired in 2004.

9 . A second arbitration with a new, a greed arbiter commenced in July 2005. Following various interim proceedings, the second arbiter issued his final draft opinion on 18 May 2007, indicating an intention to dismiss most of the applicant ’ s claims against Scott.

10 . Apollo sought judicial review of the second arbiter ’ s conduct of the proceedings arguing that the arbiter ’ s award of expenses and the arbiter ’ s opinion should be set aside on the basis they were vitiated by an error or law and/or were unreasonable. The judicial review was heard and dismissed at first instance by the Outer House of the Court of Session on 7 March 2008 and then, on appeal, by the Inner House of the Court of Session on 21 May 2009.

11 . Apollo had legal representation throughout the arbitration and judicial review proceedings.

2. The motion to allow Mr Politakis to represent Apollo and the Inner House ’ s subsequent dismissal of the stated case

12. By 2011 the applicant no longer had funds to pay for legal representation. At the material time, Scots law provided that, in all court proceedings, a company had to be represented by a solicitor or advocate (counsel). Companies were also ineligible for legal aid. For these reasons, on 2 March 2011, relying on Article 6 of the Convention, Mr Politakis sought an order to allow him to represent Apollo in stated case proceedings that Apollo had initiated on the basis of the arbiter ’ s opinion, and any future proceedings.

13. The matter came before the Extra Division of the Inner House, which allowed Mr Politakis to make submissions on the issue of representation. It also appointed an independent advocate to make submissions as amicus curiae .

14. By a judgment given on 18 January 2012 the Extra Division of the Inner House refused to make the order sought by Mr Politakis .

15 . After extensive consideration of the Strasbourg case-law, the court concluded that in the circumstances, Article 6 § 1 could not require that the application be granted because the case had been determined in the arbitration and the judicial review proceedings, during which the parties were represented. Also, because the proceedings were complex and Mr Politakis lacked the necessary legal expertise to represent Apollo, allowing him to do so would not provide Apollo with an effective right of access to court.

16. Mr Politakis applied for leave to appeal that decision to the Supreme Court.

17. On 27 November 2012 the Inner House refused Mr Politakis leave to appeal to the Supreme Court and refused motions for Mr Politakis either to substitute himself for Apollo in the proceedings or join the proceedings as a separate party. It considered that the specific terms of the contract between Apollo and Scott prevented Mr Politakis from substituting himself for Apollo. It also noted that Mr Politakis and Apollo were recognised separately in law and their interests were not entirely aligned.

18. The court ordered Apollo to pay Scott ’ s costs from the sum of GBP 35,000 which Apollo had to lodge at the start of the appeal.

3. Proceedings before the Supreme Court

19. Mr Poliatkis on behalf of the applicant appealed to the Supreme Court. After hearing submissions from Mr Politakis and counsel for Scott, on 13 June 2013 the Supreme Court gave judgment. Lord Hope gave the lead opinion. He concluded that ordinarily there would be no right of appeal to the Supreme Court against an “interlocutor” (a decision of the Inner House in stated case proceedings) because an interlocutor is the court ’ s decisive opinion on the law, provided to the arbitrator and is not a determination or decision that amounts to a judgment.

20 . However, he observed in the present case that the interlocutor did not give an opinion to the arbitrator but instead resolved a separate question disassociated from the substance of the case – whether it was appropriate to refuse Mr Poliatkis the possibility to represent the applicant. He commented:

“23. The proceedings in the Inner House must be regarded for this purpose, both in form and in substance, as a separate process from the proceedings before the arbiter.”

and that the interlocutor:

“27 ...did not touch the merits of the issues on which its opinion was being sought ...”

21 . He concluded that in deciding the interlocutor in those terms the Inner House had departed from its role under statute and given what amounted to a judgment on the issue of the applicant ’ s request for lay representation. As the Inner House ’ s decision amounted to a judgment, the Supreme Court found that it was open to Apollo to appeal that decision. However, because it was a right to appeal without the leave of the lower court, the petition of appeal must be certified by two counsel as reasonable – the test for which was whether the appeal raised arguable points of law which are of general public importance . The Supreme Court also underlined that the appeal did not concern any arguments the applicant might have wished to advance in order to obtain a legal opinion from the courts on any aspects of the arbiter ’ s decision. The appeal concerned the question of whether the Extra Division of the Inner House had made the correct decision, as a matter of domestic law, in the interlocutor.

22. A notice of appeal was filed on behalf of Apollo on 18 September 2013 (it appears by legal representatives, including two Scottish counsel, whom Apollo had by then instructed). The opposing party in the litigation then applied for the appeal to be struck out on the basis that the appeal had not been certified as reasonable by two counsel and it did not raise any arguable point of law of general public importance.

23 . Having considered the matter, the Supreme Court gave further directions to the parties. The Registrar ’ s letter of 17 February 2014 stated:

“I have been asked to inform Counsel that there is no dispute that Article 6 may require the Court to allow lay representation of a company in certain circumstances. This appeal raises a much narrower question. Accordingly, Counsel for the Appellant [Apollo] should be asked to consider whether it would be appropriate for them to certify that the questions:

( i ) whether the majority of the Inner House erred in holding that Article 6 of ECHR in this case did not require the court to allow a director of the company (Mr Politakis ) to represent it in the stated case proceedings; and

(ii) whether the Inner House erred in law in dismissing Apollo ’ s application for a stated case;

raise points of law which are of general public importance.”

24 . It appears that the applicant then changed from Scottish to English legal representatives but that, in June 2014, the new, English legal representatives informed the court that they no longer acted on behalf of Apollo. Further correspondence took place between the court and the parties with Mr Politakis acting on behalf of Apollo.

25 . On 3 November 2014 the Registrar of the Supreme Court informed the parties that the appeal had been dismissed. The Registrar ’ s letter stated that the court did not think that the general question of lay representation of a company was in issue but that the question raised in the appeal was whether allowing Mr Politakis to represent his company would provide Apollo with an effective right of access to the court. The court had concluded that this issue did not raise a point of law of general importance and accordingly refused permission for Mr Politakis to present the appeal on Apollo ’ s behalf.

B. Relevant domestic law and practice

26 . The provision for arbitration proceedings in Scots law was set out in Hamlyn & Company v. the Talikser Distillery (1894) 21 R (HL) 21, which concerned the validity of an arbitration clause (see §§ 23-25):

“The Courts in Scotland recognise the right of the parties to a contract to determine that any disputes under it shall be settled, not in the ordinary course of litigation, but by an arbitration tribunal selected by the parties. If, in the present case the arbitrators had been named, the Courts in Scotland would have recognised and given effect to and enforced the arbitration clause, and would by reason of it have declined to enter upon a trial of the merits of the case.

...

The jurisdiction of the Court is not wholly ousted by such a contract. It deprives the Court of jurisdiction to inquire into and decide the merits of the case, while it leaves the Court free to entertain the suit, and to pronounce a decree in conformity with the award of the arbiter. Should the arbitration from any cause prove abortive, the full jurisdiction of the Court will revive, to the effect of enabling it to hear and determine the action upon its merits.”

27. Since the date of the proceedings in the present case, the practice as set out in the above case has been given statutory force in Section 10 of the Arbitration (Scotland) Act 2010.

28. Section 3.1 of the Administration of Justice (Scotland) Act 1972 explains the function of the stated case procedure:

“Subject to express provision to the contrary in an agreement to refer to arbitration, the arbiter or oversman may, on the application of a party to the arbitration, and shall, if the Court of Session on such an application so directs, at any stage in the arbitration state a case of the opinion of that court on any question of law arising in the arbitration.”

29 . In considering the stated case the court does not apply the law to the facts: it leaves that to the arbiter. In applying the law to the facts, the arbiter is obliged to follow the legal opinion of the court (see Mitchell ‑ Gill v. Buchan 1921 SC 390, 395).

COMPLAINT

30. The applicant complained under Article 6 § 1 of the Convention that he had been denied access to court and that the proceedings were excessively lengthy.

31. Article 6 of the Convention, reads as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...”

THE LAW

A. The parties ’ submissions

32 . The Government submitted that the applicant voluntarily entered into arbitration proceedings and that the proceedings before the arbiter were outside the jurisdiction of the domestic courts. They also argued that Article 6 does not apply to stated case proceedings, which were not determinative or decisive of any civil rights or obligations. Moreover, the applicant had failed to exhaust effective remedies in the stated case proceedings. Also, Apollo had not been deprived of access to court having been legally represented throughout the arbitration and judicial review proceedings which dealt with the merits of the claim. Finally, the arbitration proceedings were lengthy but the applicant was responsible for those delays which moreover could not be attributed to the State, the applicant having voluntarily submitted to arbitration.

33 . The applicant submitted that Article 6 applied to all the proceedings including the stated case proceedings. Imposing a rule which required liquidated companies to have legal representation prevented their access to court where there was a public interest in allowing liquidated companies to be able to represent themselves. The proceedings had been excessively lengthy and the delays were attributable to the state.

B. Admissibility

1. The arbitration proceedings and the judicial review proceedings

34 . Article 6 applies only to the determination of "civil rights and obligations or of any criminal charge". In the present case, the applicant complains about the non-resolution of a contractual dispute worth an estimated GBP 4-5.5 million, which resulted in the liquidation of Apollo (see paragraph 6 above). The rights in question were of a pecuniary nature and resulted from a contractual relationship between private persons. They were therefore “civil” rights for the purposes of Article 6 (see Mutu and Pechstein v. Switzerland , nos. 40575/10 and 67474/10 , § 57, 2 October 2018).

35. The Government have not explicitly argued that the application is inadmissible ratione materiae but nonetheless consider that responsibility of the United Kingdom cannot be engaged by any failing in the arbitration proceedings. Even where a State has not raised an objection concerning the Court ’ s competence, this issue calls for consideration ex officio by the Court (see Mutu and Pechstein v. Switzerland , cited above, § 62).

36. In the present case, the Court observes that the arbitration proceedings occurred on an ad hoc basis within the framework of Scots law and under the jurisdiction of the Scottish courts. As stated in Hamlyn & Company v. the Talisker Distillery , the domestic courts were free to entertain the suit and pronounce a decree in conformity with the award of the arbiter. Should the arbitration prove abortive, the full jurisdiction of the domestic courts would revive (see paragraph 26 above). Indeed, Apollo challenged the arbiter ’ s opinion before the domestic courts in judicial review proceedings. The appeals were dismissed and the domestic courts upheld the arbiter ’ s opinion (see paragraph 10 above). In the circumstances of the present case, the contested acts and omissions were thus capable of engaging the respondent State ’ s responsibility under the Convention (see Mutu and Pechstein v. Switzerland , cited above, § 66-67 , and Jakob Boss Söhne KG v. Germany , no. 18479/91, Commission decision of 2 December 1991).

37. Article 6 § 1 of the Convention therefore applies ratione materiae to the arbitration proceedings and judicial review proceedings.

( a ) The arbitration proceedings

38. The Court has found that arbitration clauses, which present clear benefits for the administration of justice, do not in principle offend the Convention. In subscribing to an arbitration clause, the parties voluntarily renounce certain rights under the Convention. Such a renunciation – so far as it is legitimate – must be established in an unequivocal manner and attended by minimum safeguards corresponding to its importance (see Mutu and Pechstein v. Switzerland, cited above, § 95).

39 . The legitimacy of the arbitration clause in the present case was not called into question, nor was the fact that it was voluntarily agreed to without equivocation. The Court also notes that its application was attended by safeguards, in particular the applicant was able to agree the choice of arbiter (see paragraphs 8-9 above and Tabbane v. Switzerland ( dec. ), no. 41069/12, 1 March 2016, § 31). Accordingly, the Court concludes that the applicant ’ s voluntary decision to submit his complaint to arbitration proceedings was freely made and did not raise any concerns under the Convention. The Court therefore considers that by accepting the arbitration clause, Apollo renounced certain guarantees provided for in Article 6 § 1 (see Mutu and Pechstein v. Switzerland, cited above, § 103 , and Suovaniemi and others v. Finland ( dec. ), no. 31737/96, 23 February 1999).

40. It is therefore not for the Court to examine Apollo ’ s complaint that the arbitration proceedings were excessively lengthy, or the question of whether Apollo should have been entitled to legal representation. The Court observes that in any event, Apollo did have legal representation throughout the arbitration proceedings (see paragraph 11 above).

( b ) The judicial review proceedings

41. The judicial review proceedings were initiated on 18 May 2007 and completed on 21 May 2009, a total of two years and four days for two levels of jurisdiction. The Court does not consider it necessary to examine whether in the present case the judicial review proceedings should be considered as an extension of the arbitration proceedings in respect of which the applicant company had renounced certain guarantees under Article 6 § 1, as taking into account their complexity (see paragraph 10 above) they were not excessively lengthy. Moreover, the applicant was legally represented throughout the judicial review proceedings (see paragraph 11 above).

( c ) Conclusion

42 . Accordingly, the Court concludes that this part of the applicant ’ s complaint is manifestly ill-founded.

2. The stated case proceedings

43. The stated case proceedings did not concern the contractual dispute that was at issue in the arbitration and the judicial review proceedings (see paragraph 34 above). They concerned a separate question which was whether Article 6 required a court to allow the director of a company to represent it in stated case proceedings, and if so, whether Mr Poliatkis should have been able to represent Apollo in those stated case proceedings (see paragraphs 20 and 23 above).

44. The Court notes that it is not clear whether domestic remedies have been exhausted in respect of the stated cas e proceedings (see paragraph 24 above). Nor is it clear whether the stated case proceedings should be considered as an extension of the arbitration proceedings in respect of which the applicant company had renounced certain guarantees under Article 6 § 1 given the Supreme Court ’ s conclusion that the domestic courts had not provided a legal opinion but instead given a separate judgment (see paragraph 21 above). However, it is not necessary for the Court to decide on those matters for the reasons set out below.

45. According to the Court ’ s well established case-law, for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute (“contestation” in the French text) over a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see Micallef v. Malta [GC], no. 17056/06, § 74, ECHR 2009).

46 . The Court observes that the issue in the stated case proceedings was not decisive for the applicant ’ s substantive claim in the arbitration proceedings. The merits of the arbitration claim had already been decided by the arbiter and been subject to judicial review. As the Supreme Court concluded, the Inner House had departed from its role under statute and not given an opinion to the arbitrator but had instead resolved a separate question disassociated from the substance of the case. Therefore in the circumstances, the result of the appeal in the stated case proceedings could not have any bearing on the substance of t he matter (see paragraphs 20 ‑ 21 above). Accordingly, the Court considers that the stated case proceedings could not be considered as directly decisive for the right in question. It follows that Article 6 § 1 is not applicable to the stated case proceedings.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 25 July 2019 .

Renata Degener Aleš Pejchal Deputy Registrar President