Ionna Lambrou Christofi v National Bank of Greece (Cyprus) Ltd
| Jurisdiction | England & Wales |
| Judge | Richards LJ,Gross LJ,Hildyard J |
| Judgment Date | 09 March 2018 |
| Neutral Citation | [2018] EWCA Civ 413 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2015/1438 |
| Date | 09 March 2018 |
[2018] EWCA Civ 413
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The High Court (Queen's Bench Division)
Mrs Justice Andrews DBE
QB20140511 & QB20140586
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Gross
Lord Justice David Richards
and
Mr Justice Hildyard
Case No: A2/2015/1438
Daniel Warents (instructed by Fletcher Day Limited) for the Appellant
David Elvin QC and Camilla Lamont (instructed by Charles Russell Speechlys LLP) for the Respondent
Hearing dates: 11 October 2017
Judgment Approved
INTRODUCTION
This is an appeal from the comprehensive judgment of Andrews J, dated 14 th April, 2015: [2015] EWHC 986 (QB); [2015] 1 WLR 5405 (“the judgment”), on two preliminary issues relating to Art. 43(5) of Council Regulation (EC) No 44/2001 (“the Regulation”).
The Regulation makes provision for judgments given in one Member State (as defined in Art. 1(3)) to be enforced in another Member State. The Regulation further provides for appeals against the decision on an application for a declaration of enforceability of such a judgment. Art. 43(5) imposes time limits for appeals against a declaration of enforceability.
The two preliminary issues, relating to Art. 43(5), determined by Andrews J in the judgment were as follows:
i) First, does the Court have the power to extend time for appealing? (“Issue I: Jurisdiction”).
ii) Secondly, if yes, should the Court extend time in this case? (“Issue II: Discretion”)
Andrews J answered Issue I, “no” – save in exceptional circumstances in which a refusal to do so would breach Art. 6 of the European Convention on Human Rights (“ECHR”) — but went on to hold, under Issue II, that if she did have jurisdiction to extend time, she would have declined to exercise her discretion to do so in favour of the then Defendant, now Appellant.
The Appellant submits that the Judge erred in her decisions on both Issue I and Issue II. The Respondent contends that she was right on both Issues.
BACKGROUND
There was no, certainly no serious, dispute as to the underlying facts. A brief summary therefore suffices, drawn, gratefully, from the judgment.
As long ago as 2006, the Respondent issued proceedings in Cyprus against the Appellant and her husband (“Mr Christofi”). The proceedings concerned a loan agreement and, additionally, a personal guarantee and mortgage over certain property in Cyprus given by the Appellant as security for the loan.
The proceedings were served personally on Mr Christofi in 2006 and the Respondent contends that this constituted valid service on both Mr Christofi and the Appellant under the law of Cyprus.
A firm of Cypriot advocates entered an appearance ostensibly on behalf of both Mr Christofi and the Appellant and the proceedings continued for a number of years, before being compromised in terms of a consent order made by the Cypriot Court, dated 25 th October, 2010 (“the Settlement Order”). The Respondent's case is that no payments were made by the deadline of 30 th April, 2011 provided in the Settlement Order. As recorded in the judgment:
“3. ….. The Bank therefore started to take action to enforce the terms of the Settlement Order, first in Cyprus, and then in the United Kingdom. By the time that the Bank sought registration of the Settlement Order in the UK, the total amount due under it as calculated at €7,368,044.88. Credit was given for some relatively small amounts recovered in Cyprus.”
On the 14 th May, 2014, following a without notice application made by the Respondent pursuant to the Civil Procedure Rules (“CPR”) Part 74.3, Deputy Master Eyre registered the Cypriot Settlement Order for enforcement pursuant to the Regulation (“the Registration Order”).
The Appellant is domiciled in Cyprus and was served with the Registration Order in Cyprus on 11 th July, 2014.
The Appellant avers that this was the first time she became aware of the Cypriot proceedings:
“7. ….She alleges that her husband deliberately kept the proceedings from her, that Kallis & Kallis [the Cypriot advocates] had no authority to represent her in the Cypriot proceedings, and that the signature on a letter of retainer purporting to be her signature is a forgery (though she has adduced no expert evidence in support of that assertion).”
Based on these assertions and the provisions of Arts. 34(2) and 43 of the Regulation, together with CPR Part 74.8, the Appellant seeks to appeal the Registration Order.
It was not (or not seriously) in dispute that the applicable two months' time limit for appealing (see further, below) expired on 11 th September, 2014.
Unfortunately, the Appellant's appeal was neither filed nor served within that time limit. The Appellant's notice was filed on 30 th September, 2014 and served (as we understood it) on 3 rd October, 2014, 22 days out of time.
It is unnecessary here to set out the judgment in any length, especially with regard to Issue I. It is very clear and has been reported. I therefore turn directly to the Issues.
ISSUE I: JURISDICTION
(1) Categories and terminology: It is as well to have simple and common terminology. There are three categories of parties against whom enforcement is sought:
i) Category A: the party is domiciled in the jurisdiction of a Regulation Member State in which the declaration of enforceability is given.
ii) Category B: the party is domiciled in a Regulation Member State but one other than the Member State in which the declaration of enforceability is given. The Appellant here is a Category B party.
iii) Category C: the party is domiciled in a State other than a Regulation Member State.
(2) The legal framework: I start with the Regulation. The Recitals address a number of policy themes. First, the objective of rapid and simple recognition and enforcement in one Member State of a judgment given in another Member State. Secondly, respect for the rights of a defendant, demonstrated by the provisions for appeals. Thirdly, principles of proportionality and subsidiarity, shown by the respective spheres of the Community and of Member States.
To these ends, so far as here relevant, the Recitals provide as follows:
“(2) Certain differences between national rules governing jurisdiction and recognition of judgments hamper the sound operation of the internal market. Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters and to simplify the formalities with a view to rapid and simple recognition and enforcement of judgments from Member States bound by this Regulation are essential.
(4) In accordance with the principles of subsidiarity and proportionality…..the objectives of this Regulation cannot be sufficiently achieved by the Member States and can therefore be better achieved by the Community. This Regulation confines itself to the minimum required in order to achieve those objectives and does not go beyond what is necessary for that purpose.
(9) A defendant not domiciled in a Member State is in general subject to national rules of jurisdiction applicable in the territory of the Member State of the court seized…..
(10) For the purposes of the free movement of judgments, judgments given in a Member State bound by this Regulation should be recognised and enforced in another Member State bound by this Regulation, even if the judgment debtor is domiciled in a third State.
(17) By virtue of the …principle of mutual trust, the procedure for making enforceable in one Member State a judgment given in another must be efficient and rapid. To that end, the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the court to raise of its own motion any of the grounds for non-enforcement provided for by this Regulation.
(18) However, respect for the rights of the defence means that the defendant should be able to appeal in an adversarial procedure, against the declaration of enforceability, if he considers one of the grounds for non-enforcement to be present. Redress procedures should also be available to the claimant where his application for a declaration of enforceability has been rejected.”
The Recitals further make provision for continuity between the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 (“the Brussels Convention”) and the Regulation: see, especially, Recitals (5), (10) and (19).
As will be appreciated, the Regulation provides very limited grounds for resisting the recognition of judgments falling within its terms. In the present case, the Appellant wishes to invoke Art. 34(2), which provides that a judgment is not to be recognised if “given in default of appearance”.
Art. 43 is central to these proceedings. It is contained within Section 2 of the Regulation, under the heading “Enforcement”. Insofar as material, Art. 43 provides as follows:
“1. The decision on the application for a declaration of enforceability may be appealed against by either party.
3. The appeal shall be dealt with in accordance with the rules governing procedure in contradictory matters.
5. An appeal against the declaration of enforceability is to be lodged within one month of service thereof. If the party against whom enforcement is sought is domiciled in a Member State other than that in which the declaration of enforceability was given, the time for appealing shall be two months and shall run from the date of service, either on him in person or at his residence. No extension of time may be granted on account of distance.”
Art. 44 provides that the judgment given on the appeal may be contested only by the appeal referred to in Annex IV....
To continue reading
Request your trial
-
Hampshire County Council v C.E.
...analysis of this question is, however, to be found in the judgment of Gross L.J. in Christofi v. National Bank of Greece [2018] EWCA Civ. 413, [2018] W.L.R. (D) 155. In that case the appellant was twenty two days out of time to appeal against the making of an enforcement order by the Engli......
-
Child and Family Agency (Ireland) v M and Others
...Fam 248, [2017] 1 FCR 320, [2017] 2 WLR 949, [2017] ILPr 5, [2017] 1 FLR 223. Christofi v The National Bank of Greece (Cyprus) Ltd[2018] EWCA Civ 413 (9 March 2018, unreported). CILFIT v Ministero della Sanità (Case C-283/81) [1982] ECR 3415, [1983] 1 CMLR 472. E (a child) (care proceedings......
-
Athena Capital Fund Sicav-Fis S.C.A. v Secretariat of State for the Holy See
...In this case, one of those circumstances is the policy and principles of BRR (see National Bank of Greece (Cyprus) Ltd v Christofi [2018] EWCA Civ 413, [2019] 1 WLR 1435 at [104]). The policy and principles of the BRR include the principle embodied in Article 25 that where there is a juri......
-
Kingdom of Spain v London Steam-Ship Owners’ Mutual Insurance Association Ltd
...and efficient recognition and enforcement in one member state of a judgment given in another”; see National Bank of Greece v Christofi [2019] 1 WLR 1435 at paragraph 58 per Gross LJ. Having regard to that objective the court will be reluctant to order disclosure unless it is strictly neces......
-
Extension Of Time To Appeal - Christofi V National Bank Of Greece
...Alert - [2018] EWCA Civ 413 Court of Appeal decides whether defendant can extend time to appeal against registration of a foreign A Cypriot judgment was registered for enforcement in England by a registration order made in May 2014. The Registration Order was served on the appellant/defenda......