Orams and another v Apostolides
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE JACK,Mr Justice Jack |
| Judgment Date | 06 September 2006 |
| Neutral Citation | [2006] EWHC 2226 (QB) |
| Court | Queen's Bench Division |
| Date | 06 September 2006 |
| Docket Number | Case No: QB/2005/PTA/0897 |
[2006] EWHC 2226 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jack
Case No: QB/2005/PTA/0897
(1) David Charles Orams
(2) Linda Elizabeth Orams
Miss Cherie Booth QC, Mr Bitu Bhalla, Mr Ramiz Gursoy and Ms Angela Ward (instructed by Vahib & Co) for the Appellants
Mr Thomas Beazley QC and Mr Colin West (instructed by Holman Fenwick & Willan) for the Respondent
Hearing dates: 18 —21 July 2006
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction.
These appeals raise the question of the enforceability in England of judgments of the courts of the Republic of Cyprus concerning land within the Turkish Republic of Northern Cyprus. The Turkish Republic is not recognised by the United Kingdom or by any country save Turkey, but it has de facto control of the area which it occupies. The appeals have an importance which extends far beyond the parties to them.
On 9 November 2004 the respondent to the appeals, Meletios Apostolides, obtained a judgment in default of appearance in the Nicosia District Court in Cyprus against the appellants, David and Linda Orams. On 19 April 2005 judgment was delivered in the District Court refusing to set aside the earlier judgment on the ground that there was no valid defence to the claim. On 21 October 2005 those judgments were registered in, and declared enforceable by, the Queen's Bench Division of the High Court pursuant to Council Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The appeals are against those registrations.
The situation with which the court is concerned can only be understood in the context of the recent history of Cyprus. I shall set it out as briefly as I may and with the intention of avoiding controversy. The Republic of Cyprus came into being in 1960 when the United Kingdom gave up its sovereignty of the island with the exception of the two sovereign base areas of Akrotiri and Dhekelia. This was achieved by, among other instruments, the Treaty of Establishment entered into by the United Kingdom, Greece, Turkey and the Republic itself. The constitution of the Republic was intended to provide a balance between the Greek and Turkish communities on the island. Within three years the bi-communal government of the island had effectively failed. In March 1964 a United Nations peace keeping force, UNICYP, arrived. A Turkish Cypriot administration came into being in the area then under Turkish Cypriot control. In July 1974 there was a coup against the government of the President, Archbishop Makarios. The aim of the coup was to secure union with Greece. On 20 July 1974 the Turkish army invaded the north of the island and secured control of the area now under the administration of the Turkish Republic. One outcome of this was the effective expulsion of Greek Cypriots from much of the area that was occupied. Turkish Cypriots in the unoccupied area left for the occupied area. The Turkish authorities set up an administration for that part of the island. The Turkish Republic of Northern Cyprus, the TRNC was declared in 198The TRNC has not been recognised by any country save Turkey. It has control over the relevant area, and the Republic of Cyprus does not. During the negotiations for the accession to the European Union of Cyprus together with nine other countries, it was hoped that a settlement could be reached between the Greek and Turkish communities so the whole island might be brought fully within the EU. But this had not occurred prior to the Treaty of Accession which also brought the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and the Slovak Republic into the European Union. The Treaty was signed on behalf of the Republic of Cyprus on 16 April 200A plan had been put forward, called the Annan Plan because it was proposed by the Secretary General of the United Nations of that name, which was intended to resolve the dispute between the Greek and Turkish Communities. The plan was rejected by the Greek community in a referendum held on 24 April 2004. It was accepted by the Turkish community. The result was that the practical division of the island remained unchanged. It had been decided by the European Council on 13 December 2002 prior to the Treaty of Accession that 'in the absence of a settlement the application of the acquis to the northern part of the island shall be suspended until the Council decides unanimously otherwise, on the basis of a proposal by the Commission.' The decision was given effect by Protocol No 10 to the Treaty of Accession. The Protocol provided that 'the application of the acquis shall be suspended in those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control.' It is agreed that 'the acquis', also called 'the acquis communautaire', refers to the entire body of legislation of the European Union. It includes all treaties, legislation and the decisions of the European Court.
I can now come to those involved. Mr Apostolides is a Greek Cypriot, who lived in the area which is now under the control of the TRNC, where his family owned land at Lapithos in the district of Kyrenia. As a result of the invasion he had to flee. Mr and Mrs Orams are British and live in Hove in Sussex. In 2002 they purchased 2,400 square feet of land, which was part of land which had come into the ownership of Mr Apostolides. It then had a partly built house on it and the lemon trees which had formerly been on it were gone. They purchased it from a Turkish Cypriot, who was the registered owner under the law of the TRNC. He had purchased it from another Turkish Cypriot who, they were told, had left a property in the south of the island and had acquired it from the TRNC. Mr and Mrs Orams paid £50,000. They spent a further £160,000 building their villa, adding a swimming pool and making a garden. In April 2003, following the easing of restrictions on travel to the TRNC, Mr Apostolides visited Lapithos and saw the property. Early in October 2004 he introduced himself to Mrs Orams and they had a pleasant conversation.
The proceedings in Cyprus
It is helpful to state at this point that the civil procedure of the courts of the Republic of Cyprus broadly follows that of England in 1954, that being the relevant date as I understand it.
On Tuesday, 26 October 2004 Mr Apostolides issued a specially endorsed writ in the District Court of Nicosia naming Mr and Mrs Orams as defendants. It gave their English address. It claimed an order that they demolish the villa, the swimming pool and the fence around their property in Lapithos, that they deliver Mr Apostolides free occupation of the land, and damages for trespass. Mr Apostolides relied on his title to the land.
On the evening of the same day service of the writ was effected on Mrs Orams on behalf of herself and her husband at their villa. It is accepted the service was good. The circumstances may be nonetheless of some importance because they may be relevant to whether Mrs Orams had sufficient time in which to arrange for an appearance to be entered. I will return to that.
The time limit for entering an appearance was ten days from the service of the writ. The last day was therefore 5 November. On 8 November an application was made on behalf of Mr Apostolides for judgment to be entered in default of appearance. The application was supported by an affidavit sworn on that day by Mr Apostolides at the Cyprus High Commission in London. On 9 November judgment in default of appearance was entered. On 10 November a certificate was obtained in the form prescribed by Annex V to Regulation 44/2001. On 9 November Mr Mentes, the lawyer instructed on behalf of Mr and Mrs Orams, attended at the District Court with the intention of entering an appearance on their behalf. The judgment had already been entered.
The judgment required Mr and Mrs Orams to demolish the villa, the pool and the fencing, to give Mr Apostolides possession of the land, and to pay CY£7,654.83 special damages, CY£294.41 mesne profits monthly from December 2004 until delivery up, and CY£380.50 costs, all with interest at 8%.
On 15 November 2004 an appearance was entered on behalf of Mr and Mrs Orams. It was not conditional. On the same day an application was issued on their behalf that the judgment be set aside. The application was supported by affidavits from Mrs Orams and Mr Mentes. Following a hearing at which Mrs Orams gave oral evidence judgment was delivered by District Judge Efrem on 19 April 2005 dismissing the application. It was a substantial judgment, 36 pages in translation. The judge held that by reason of the merger of the Kyrenia district with the Nicosia district in 1974 and the land at Lapithos being in the Kyrenia district, the court – that is the District Court at Nicosia, had jurisdiction to try the case (page 20 of the translation). She considered the English case of Hesperides Hotels v Muftizade irrelevant because the court was there concerned with its jurisdiction over foreign real property, namely the hotels. Here, as she held, the court was concerned with real property over which it had jurisdiction. She cited the decision of the European Court of Human Rights, Loizidou v Turkey [1997] 23 EHHR 513, as authority that ownership of land in the north of Cyprus remained with its original Greek Cypriot owners. That defeated the submission that the court should take account of the de facto situation in the north (page 22). She then turned to whether Mr and Mrs Orams had shown...
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