Christofi v National Bank of Greece (Cyprus) Limited

On a renewed application for permission to pursue what was treated as a second appeal, the court held that an arguable issue on the construction of the Judgments Regulation, Article 43.5, could satisfy the real-prospect and important-point requirements under the CPR. The later replacement Regulation did not remove the issue’s importance while existing judgments might still fall under the earlier regime. A challenge to the refusal to extend time could also meet the permission threshold where closely connected with jurisdiction and raising an arguable challenge based on delay and all the circumstances. An appeal did not automatically justify a stay. The interests of justice and expedition controlled, subject to protection of any sale proceeds by escrow.

This was a renewed application by Ioanna Christofi for permission to appeal from the judgment of Andrews J in the High Court, Queen’s Bench Division, dated 14 April 2015. The judge had held that she lacked jurisdiction to extend time for an appeal against registration of a settlement order under the Judgments Regulation. She had also concluded that, even if jurisdiction existed, she would not exercise the discretion to extend time.

The proposed appeal concerned jurisdiction and discretion. The court proceeded on the basis that it was a second appeal for the purposes of the CPR. The applicant also sought a stay, relying on CPR 74.9, and raised the possibility of a reference to the Court of Justice of the European Communities. The respondent did not attend and was not represented.

Permission to appeal was granted on jurisdiction and discretion. A stay was refused, subject to a protective condition concerning any sale proceeds.

1. The court proceeded on the basis that the application was a second appeal under CPR 52.13 and that the applicable permission test had to be satisfied. The jurisdiction issue concerned the proper interpretation of Article 43.5 of the Judgments Regulation. A different view from that taken by Andrews J was plainly arguable. Subject to the effect of the later Regulation, the issue had a real prospect of success and raised an important point of principle or practice.
2. The introduction of a new Regulation with a different regime reduced the practical importance of the issue over time. It did not remove that importance altogether, since sufficient existing judgments might still fall under the earlier Regulation.
3. The challenge to the judge’s exercise of discretion was a separate and largely fact-sensitive issue. Nevertheless, on the facts it was sufficiently ancillary to the jurisdiction issue to satisfy the permission test. The court was persuaded, although only narrowly, that there was a real prospect of success, having regard principally to the significance or lack of significance of the delay and all the circumstances of the case.
4. A stay did not follow automatically from an appeal. The usual approach was to ask whether a stay was justified in the interests of justice, having regard to the scheme of the Regulation and the need for expedition. That justification was absent here, so the stay application was rejected.
5. If the bank sold either property in England, the proceeds were to be kept within the jurisdiction in an escrow account or similar arrangement pending the appeal. The parties were directed to agree arrangements for the proceeds, subject to the court’s approval.
6. The proposed reference to the Court of Justice of the European Communities was not accepted at this stage. The applicant could renew the point before the court hearing the appeal, but the permission order was not intended to promote open-ended delay.

• Court of Appeal (Civil Division): On 3 March 2016, Lord Justice Gross granted permission to appeal on jurisdiction and discretion. He refused a stay, subject to protection of any sale proceeds by escrow or a similar arrangement. [2016] EWCA Civ 304
• High Court, Queen’s Bench Division: Andrews J’s judgment dated 14 April 2015 held that there was no jurisdiction to extend time for the appeal against registration of the settlement order. Alternatively, she would not exercise the discretion to grant an extension. No citation for that judgment was stated.