Haji-Ioannou and Others v Frangos
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MRS JUSTICE SLADE DBE,Mrs Justice Slade DBE |
| Judgment Date | 21 September 2009 |
| Neutral Citation | [2009] EWHC 2310 (QB) |
| Docket Number | Case No: QB/2009/APP/0182 |
| Court | Queen's Bench Division |
| Date | 21 September 2009 |
[2009] EWHC 2310 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: The Honourable Mrs Justice Slade DBE
Case No: QB/2009/APP/0182
Richard Millett QC and James Collins (instructed by Bird & Bird LLP) for the Applicants
Alexander Layton QC and Sara Masters (instructed by Waterson Hicks) for the Respondent
Hearing dates: 6–9 July 2009
Mrs Justice Slade DBE:
Mr Frangos appeals from two orders made by Master Fontaine. By the first order made on 13 th January 2009 under the provisions of Council Regulation 44/2001 (the 'Regulation') the Master registered an Order in favour of Loucas Haji-Ioannou ('LH') made by the Greek Court of Appeal on 12 th May 2008 (the 'Registration Order'). Two days after the application for registration of the judgment was issued, on 17 th December 2008 LH died. By the second order on 3 rd June 2009 (the 'Substitution Order') the Master substituted as Applicants, Nedi Haji-Ioannou ('NH') the widow of LH, and his children, Strylianos Haji-Ioannou ('SH'), Polys Haji-Ioannou (' PH') and Clelia Haji-Ioannou ('CH') who will be referred to as 'the Applicants'. References in this judgment to Articles are to articles in the Regulation unless otherwise indicated.
This is the latest round in this jurisdiction of a long dispute in which the late LH claimed repayment of sums totalling $49,035,918 from Mr Frangos, his former son-in-law. It was not necessary to consider the substance of the claim for the purposes of this appeal. LH contended that the money had been paid to Mr Frangos as a loan. Mr Frangos maintained that the sums were paid as a gift. The dispute has been the subject of litigation in this country in which Mr Frangos successfully challenged the jurisdiction of the English courts over the claim. The judgment of the Court of Appeal is reported as Haji-Ioannou v Frangos [1999] 2 Lloyd's Reports 337. LH Haji-Ioannou then pursued his claim in Greece. The Greek Court of Appeal gave judgment for LH. On 17 th November 2008 the Greek Supreme Court heard an appeal by Mr Frangos from the judgment of the Greek Court of Appeal. On 16 th February 2009 it dismissed his appeal. The registration of the judgment is a preliminary step in seeking to enforce the judgment in this country. It is apparent from documents placed before the court that enforcement proceedings are also being pursued in New York State.
On 13 th May 2009 Master Fontaine made the following Registration Order:
“The Judgment of the Court of Appeal of Piraeus of Judges Sarantis Drineas, Maria Galani-Leonardopoulou and Maria Vasdeki of 12 May 2008 in Decision Number 362/2008 between the Plaintiff Loucas Haji-Ioannis c/o Bird & Bird LLP, 15 Fetter Lane London EC4A 1JP and the Defendant Ioannis Frangos of Nyrnfwn 16, Kifissia, Attica Greece. (“the Judgment”) whereby it was adjudged inter alia that:
(a) The Respondent is indebted to the Applicant in the sum of US$49,035,918.
(b) The Respondent is indebted to the Applicant for legal interest on US$49,035,918 from 4 August 1994 to final settlement which totals as at 7 October 2008 US$57,617,884.70 and which continues to accrue pursuant to
Article 8 of the Greek Act of the Council of Ministers number 36/1990.
(c) The Respondent do pay to the Applicant EUR€700,000 in respect of legal costs.
…be registered as a Judgment in the Queen's Bench Division of the High Court of Justice in England pursuant to Council Regulation (EC) 44/2001.'
Council Regulation 44/2001
The Regulation provides as follows:
Article 38
1. A judgment given in a Member State and enforceable in that State shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.
2. However, in the United Kingdom, such a judgment shall be enforced in England and Wales, in Scotland, or in Northern Ireland when, on the application of any interested party, it has been registered for enforcement in that part of the United Kingdom.
Article 42
2. The declaration of enforceability shall be served on the party against whom enforcement is sought, accompanied by the judgment, if not already served on that party.
Article 48
1. Where a foreign judgment has been given in respect of several matters and the declaration of enforceability cannot be given for all of them, the court or competent authority shall give it for one or more of them.
2. An applicant may request a declaration of enforceability limited to parts of a judgment.'
Article 53
1. A party seeking recognition or applying for a declaration of enforceability shall produce a copy of the judgment which satisfies the conditions necessary to establish its authenticity.
Applications for registration under the Regulation are made without notice. Hence this appeal was the first opportunity for arguments against registration to be advanced on behalf of Mr Frangos. The issues which arise on this appeal concern the consequences of the death of LH. He was born in Cyprus and had British nationality. The parties are agreed that in about 1990 he acquired a domicile of choice in Monaco. When he became ill towards the end of his life he went to live in Athens where he received medical treatment. It is contended on behalf of Mr Frangos that Greece then became the domicile of choice of LH. He died intestate in Athens leaving a widow and three children.
It was contended on behalf of Mr Frangos that the Applicants did not have an interest in the judgment satisfying the requirements of Article 38 for its registration. For the same reason it was contended that the Substitution Order should be set aside. Over the course of the hearing the arguments of the parties on the main issue, whether the Applicants had an interest in the judgment, have developed and changed in emphasis. On the day of the hearing Alexander Layton QC for Mr Frangos raised the issue of renvoi for the first time. The hearing was adjourned to allow the Applicants to consider the new point and for the parties to make submissions. Further, at a late stage, a question raised on behalf of Mr Frangos as to whether LH had made a will. On the basis of documents which had recently come to light he also questioned whether the Applicants had given up their interest in the judgment.
Subject to the question of whether the Applicants, with the exception of NH, had given up their rights to succeed to the Frangos claim, it was common ground that whether the Greek, Monegasque or English law of succession applied, the Applicants were the heirs of LH and would inherit the benefit of the Frangos judgment. By the time closing submissions had been reached Mr Layton helpfully made it clear that he was confining the area of disagreement, and subject to the question of whether the Applicants had given up their rights to succeed to the Frangos claim, to the time when the Applicants would succeed to the judgment. Under Monegasque law, subject to attestation which operates retrospectively, the property of an intestate vests in his close relatives on his death. Under Greek law heirs have four months if they are in Greece or twelve months if they are abroad to decline their inheritance. They succeed to the property when they accept their inheritance. Under English law those who are entitled to succeed to the property of an intestate do not enjoy possession in their own right until the estate of the deceased has been administered by the Public Trustee or representative in whom it vests on death.
In addition to the principle ground of appeal, Mr Layton raised a number of other grounds of challenge to the registration order. He contended that the application was made without full and frank disclosure. The material fact that LH had died was not communicated to Master Fontaine before or at the hearing. Further she was not told that the Supreme Court of Greece was considering an appeal by Mr Frangos. The Registration Order does not make it clear that the only part of the Greek judgment which is enforceable is that Mr Frangos pay €700,000 in respect of legal costs. The judgment is declaratory in respect of the principal of $49,000,000 and interest. Further Mr Layton complained that only a copy of the judgment was exhibited to the witness statement of Ms Eyre in support of the application whereas an original certified copy was required. It was contended that Mr Frangos had not been served with the Registration Order in accordance with the CPR. Further, the lawyer who supervised service had no authority to act on behalf of the Applicants. Late in the day Mr Layton questioned whether LH had in fact died intestate or whether there was a will. He also sought information as to whether the Applicants or any of them had surrendered their rights to inherit the Frangos claim.
Did Loucas Haji-Ioannou die intestate?
Mr Layton on behalf of Mr Frangos questioned whether LH had in fact made a will. The basis for this was a photograph with caption in a book entitled 'Loucas Haji-Ioannou, A King of Tankers A life-A fight' second edition published in 2006. The photograph bears a caption which in translation reads:
“Loucas Haji-Ioannou with his children Polys, Clelia and Stelios draws up his testament.”
Mr Millett QC on behalf of the Applicants referred to the declaration made by the Honorary Consuls of Greece in Monaco before Nathalie Aureglia-Caruso Notary in Monaco on 18 th May 2009, the...
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