Orams & Anor v Apostolides

Protocol No 10 suspended the application of the acquis, including Regulation No 44/2001, to matters concerning the TRNC-controlled area. An enforcing court must independently assess whether service of proceedings gave a defendant sufficient time and an effective opportunity to arrange a defence. Exceptional circumstances may include the language and manner of service, misleading conduct, the defendant’s location and difficulties in obtaining legal assistance. A later unsuccessful application to set aside a default judgment does not add a requirement to Article 34.2. An unconditional appearance does not confer jurisdiction where it was entered to contest jurisdiction or Article 22 provides exclusive jurisdiction.

Mr Apostolides obtained default and subsequent judgments in the Nicosia District Court concerning land in Lapithos, northern Cyprus. The judgments required Mr and Mrs Orams to demolish buildings and surrender possession, and awarded damages, profits and costs. They were registered and declared enforceable in the Queen’s Bench Division under Regulation No 44/2001.

Mr and Mrs Orams appealed. The issues concerned Protocol No 10, the public-policy and jurisdiction provisions of the Regulation, the default-judgment safeguard in Article 34.2, and the effect of their unconditional appearance.

1. The appeals were allowed. Protocol No 10 meant that the acquis, including Regulation No 44/2001, had no effect in relation to matters concerning the area controlled by the TRNC. Mr Apostolides could not rely on the Regulation to enforce the judgments. The land remained within the Republic of Cyprus and was not situated in another Member State for Article 22.1 purposes.

2. The alternative public-policy arguments failed. Article 6 of the Convention gave the defendants no relevant right capable of preventing recognition. Article 1 of Protocol No 1 was not engaged because the Nicosia court had treated the defendants as trespassers, not owners whose property had been expropriated.

3. Article 34.2 requires the enforcing court to assess whether service was effected in sufficient time and in a manner enabling the defendant to arrange a defence. The court applied Klomps v Michel, [1981] ECR 1593, and Debaecker v Bouwman, [1981] ECR 1779. Exceptional circumstances surrounding or following service may be considered.

4. Service was formally valid but was in Greek, involved misleading conduct and left Mrs Orams with difficulty finding a lawyer able to act in the Nicosia court. Thirteen days was insufficient in those circumstances. The later unsuccessful application to set aside did not create an additional requirement under Article 34.2. The judgments therefore could not be recognised.

5. An unconditional appearance did not confer jurisdiction under Article 24 because the defendants intended to contest jurisdiction and Article 22 provided exclusive jurisdiction in relevant immovable-property proceedings.

The judgment records that Master Eyre registered and declared the Nicosia judgments enforceable on 21 October 2005. On the Article 43 appeals, Mr Justice Jack allowed the appeals. An appeal against the Nicosia District Court’s refusal to set aside the default judgment remained outstanding.