Orams and another v Apostolides
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Sir Paul Kennedy |
| Judgment Date | 19 January 2010 |
| Neutral Citation | [2010] EWCA Civ 9 |
| Docket Number | Case No: A2/2006/2114 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 January 2010 |
[2010] EWCA Civ 9
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Mr Justice Jack
Before: Ord Justice Pill
Lord Justice Lloyd
and
Sir Paul Kennedy
Case No: A2/2006/2114
Mr Thomas Beazley QC, Professor Vaughan Lowe QC and Mr Colin West (instructed by Holman, Fenwick & Willan LLP) for the Appellant
Miss Cherie Booth QC, Mr Nicholas Green QC and Dr Angela Ward (instructed by Herbert Smith LLP) for the Respondents
Hearing dates: 12 & 13 November 2009
Lord Justice Pill:
The proceedings in this jurisdiction arise out of orders made by Master Eyre on 21 October 2005. Master Eyre ordered that judgments dated 9 November 2004 and 19 April 2005 of the Nicosia District Court in the Republic of Cyprus be registered in and be declared enforceable by the Queen's Bench Division of the High Court of Justice pursuant to Council Regulation (EC) No. 44/2001 (“the Regulation”) of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The order related to land in the village of Lapithos in the district of Kyrenia in Cyprus and required the immediate demolition of the villa, pool and fencing on the property and delivery to Mr Meletios Apostolides (“the appellant”) of the free possession of the property. Orders for damages and costs were also made.
The Republic of Cyprus came into being as an independent sovereign state in 1960. However, earlier difficulties between the Greek and the Turkish Cypriot communities on the island persisted. In July 1974, the army of the Turkish Republic invaded the north of the island and set up an administration for that part of the island its forces occupied. The Turkish Republic of Northern Cyprus (“TRNC”) was declared in 1983. It has not been recognised by any state apart from Turkey. Nothing in the present judgment can be taken to indicate an acceptance of or a comment upon the legitimacy of TRNC. The entity has a President, Mr Mehmet Ali Talat. The disputed land is in that part of Cyprus controlled by the Turkish Cypriot administration and not, therefore, within the area over which the Government of the Republic of Cyprus exercises effective control and where Nicosia District Court is situated.
The respondents to the judgments, Mr David Orams and Mrs Linda Orams (“the respondents”), appealed against the registration. They had unsuccessfully tried to have the judgments set aside in the Cypriot courts. By order dated 6 September 2006, Jack J allowed the appeal and set aside the registration of the two judgments. He granted permission to appeal to the Court of Appeal. By order dated 26 June 2007, this court referred to the European Court of Justice (“ECJ”), for a ruling on the issues raised, five questions being specified in the schedule to the order. Three of these are now relevant:
“1. In this question,
- the term “the Government-controlled area” refers to the area of the Republic of Cyprus over which the Government of the Republic of Cyprus exercises effective control; and
- the term “the northern area” refers to the area of the Republic of Cyprus over which the Government of the Republic of Cyprus does not exercise effective control.
Does the suspension of the application of the acquis communautaire in the northern area by Article 1(1) of Protocol No 10 of the Act of Accession 2003 of Cyprus to the EU preclude a Member State Court from recognising and enforcing a judgment given by a Court of the Republic of Cyprus sitting in the Government-controlled area relating to land in the northern area, when such recognition and enforcement is sought under Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ( OJ 2001, L 12, p.1) (“ Regulation 44/2001”), which is part of the acquis communautaire?
2. Does Article 35(1) of Regulation 44/2001 entitle or bind a Member State court to refuse recognition and enforcement of a judgment given by the Courts of another Member State concerning land in an area of the latter Member State over which the Government of that Member State does not exercise effective control? In particular, does such a judgment conflict with Article 22 of Regulation 44/2001?
3. Can a judgment of a Member State court, sitting in an area of that State over which the Government of that State does exercise effective control, in respect of land in that State in an area over which the Government of that State does not exercise effective control, be denied recognition or enforcement under Article 34(1) of Regulation 44/2001 on the grounds that as a practical matter the judgment cannot be enforced where the land is situated, although the judgment is enforceable in the Government-controlled area of the Member State?”
Following oral hearings before the ECJ, Advocate General Kokott delivered an opinion on 18 December 2008 and on 28 April 2009, the Court (Grand Chamber) gave judgment ( Case C-420/07). The court ruled on the three questions posed:
“1. The suspension of the application of the acquis communautaire in those areas of the Republic of Cyprus in which the Government of that Member State does not exercise effective control, provided for by Article 1(1) of Protocol No. 10 on Cyprus to the Act concerning the conditions of accession [to the European Union of states including the Republic of Cyprus] and the adjustments to the Treaties on which the European Union is founded, does not preclude the application of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to a judgment which is given by a Cypriot court sitting in the area of the island effectively controlled by the Cypriot Government, but concerns land situated in areas not so controlled.
Article 35(1) of Regulation No 44/2001 does not authorise the court of a Member State to refuse recognition or enforcement of a judgment given by the courts of another Member State concerning land situated in an area of the latter State over which its Government does not exercise effective control.
The fact that a judgment given by the courts of a Member State, concerning land situated in an area of that State over which its Government does not exercise effective control, cannot, as a practical matter, be enforced where the land is situated does not constitute a ground for refusal of recognition or enforcement under Article 34(1) of Regulation No 44/2001 and it does not mean that such a judgment is unenforceable for the purposes of Article 38(1) of that regulation.”
The case returns to this court to decide the appeal from the judgment of Jack J, applying the ECJ's answers to the questions. The answers to the questions are such that, subject to the further issues raised in this court, the appeal should be allowed and the orders of Master Eyre registering and declaring enforceable the Cypriot judgments reinstated.
The respondents have raised two issues for determination:
(I) The public policy issue: whether the judgment should be denied enforcement on the basis of public policy or whether further appropriate questions should be referred to the ECJ under article 234EC [Lisbon, article 267]. They rely on article 34(1) of the Regulation:
“A judgment shall not be recognised:
1. If such recognition is manifestly contrary to public policy in the Member State in which recognition is sought.”
(II) The apparent bias issue: whether the ruling of the ECJ is affected by apparent bias of Judge Skouris, President of the Court, and if so whether in the circumstances the question of apparent bias should be referred to the ECJ under article 234EC and/or whether the ECJ should be requested to reconsider the questions posed by the Court of Appeal on 26 June 2007.
Issue I
Public policy
On the adoption of the constitution of the Republic of Cyprus, a Treaty of Guarantee, which came into force on 16 August 1960, was made between the Republic of the one part and Greece, Turkey and the United Kingdom of the other part. Article I provided:
“The Republic of Cyprus undertakes to ensure the maintenance of its independence, territorial integrity and security, as well as respect for its Constitution.
It undertakes not to participate, in whole or in part, in any political or economic union with any State whatsoever. It accordingly declares prohibited any activity likely to promote, directly or indirectly, either union with any other State or partition of the Island.”
Article II provided:
“Greece, Turkey and the United Kingdom, taking note of the undertakings of the Republic of Cyprus set out in Article I of the present Treaty, recognise and guarantee the independence, territorial integrity and security of the Republic of Cyprus, and also the state of affairs established by the Basic Articles of its Constitution.
Greece, Turkey and the United Kingdom likewise undertake to prohibit, so far as concerns them, any activity aimed at promoting, directly or indirectly, either union of Cyprus with any other State or partition of the Island.”
By a Treaty between the same parties on the same date, arrangements were made for two areas in Cyprus, described as Sovereign Base Areas, to remain under the sovereignty of the United Kingdom. Nothing in this appeal turns on that provision. The Treaty also provided, in article 5, that “the Republic of Cyprus shall secure to everyone...
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