Court of Session grants vexatious litigant order against former engineering company director



Lord Malcolm
Lord Malcolm

The Inner House of the Court of Session has granted a permanent vexatious litigant order against the former director of an engineering company after an application by the Lord Advocate.

Gabriel Politakis, a 90 per cent shareholder in the now liquidated Apollo Engineering Ltd, had instigated a variety of fruitless legal claims deriving from a contractual dispute from 1990 and subsequent arbitration. The order was sought under section 100 of the Courts Reform (Scotland) Act 2014 based on his conduct from 2014 onwards.

The case was heard by Lord Malcolm, Lord Woolman, and Lord Pentland. The petitioner was represented by Wojciech Jajdelski, advocate, with the respondent appearing as a party litigant.

Arbitration challenge

The respondent’s legal claims commenced after a dispute arose between Apollo and another company, John Scott Ltd (Scott), for which it had carried out pipe-work under a sub-contract. Court action was commenced by Scott in 1992, with Apollo lodging defences and a counterclaim. The action was later sisted pending the result of an arbitration between the parties.

That arbitration was ultimately unsuccessful and following the retirement of the arbiter, a second one commenced in 2005. A final draft opinion issued by the second arbiter, Mr Spencely, in 2007 indicated an intention to dismiss most of the claims Apollo had made. Apollo challenged this proposed decision in both an appeal by stated case and a petition for judicial review.

Following the failure of the judicial review proceedings, in 2012 the respondent unsuccessfully applied to be sisted in place of Apollo in the stated case. An appeal of this decision was refused by the UK Supreme Court in November 2014. He then brought a small claims action against Mr Spencely, which was dismissed as he had no title to sue.

A second sheriff court action against Mr Spencely for damages was dismissed in 2016, with the Sheriff Appeal Court refusing the appeal and applications for further appeal being rejected by the SAC, the Court of Session, and the UKSC. In 2015 the respondent also raised proceedings in the name of Apollo against the UK in the European Court of Human Rights complaining that he had been denied access to the court. The ECtHR held that the complaint was inadmissible.

In seeking a permanent order, counsel for the petitioner founded on the respondent’s history of unsuccessful litigation as well as the content of blog posts he made espousing unfounded accusations and conspiracy theories against a number of persons. Based on this evidence, the balance of convenience supported the making of an order. An interim order had previously been granted in January 2021.

The respondent, who lodged over 100 pages of answers to the petition, opposed the motion on the basis that there was no prima facie case for the grant of an order. He denied that he was a vexatious litigant, disputed the Lord Advocate’s position that his claims were unmeritorious, and claimed that the application had been brought in bad faith.

No legal foundation

The opinion of the court was delivered by Lord Woolman. He began by quoting Lady Dorrian’s judgment in Lord Advocate v Aslam (2019), who said of the text for vexatious conduct: “It is not persistent failure which is the key, rather that the failure in question has been based on there being no merit even to commence the litigation or make the application. The critical finding will be that repeated litigations and applications have failed for reasons of competence, irrelevance and the like.”

Lord Woolman added: “It is recognised that the provisions permitting the granting of vexatious litigant orders amount to an interference with the rights of the citizen. However, the extent of that interference is limited and designed to prevent abuses of court processes.”

Examining whether the test in section 100 of the 2014 Act had been met, he explained: “It cannot be said that failure to succeed in litigation is always a marker of a vexatious litigant. However, in the current context, the respondent has not enjoyed any measure of success in the various proceedings raised at his or Apollo’s instance. Many, if not all of the proceedings have fallen at an early stage, by failing to surmount the necessary hurdles (of competency and relevancy) for pursuing a court action.”

He concluded: “Mr Politakis has raised actions repeatedly without a reasonable basis. All have failed as being without merit. His applications and appeals likewise have had no legal foundation. For those reasons we are satisfied that the history of litigations and legal applications can properly be described as vexatious.”

For these reasons, the petition was granted, and a permanent vexatious litigant order made against the respondent.

© Scottish Legal News Ltd 2021



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