Cyprus Popular Bank Co Ltd v Vgenopoulos & Ors

Articles 47.2 and 47.3 of the Judgments Regulation do not confer an automatic entitlement to a domestic freezing order. They permit protective measures, but the applicant must obtain the relief available under the procedural law of the enforcing court.

An English court must therefore apply conventional principles governing freezing orders. A foreign judgment may create a strong presumption in favour of relief, but the court retains discretion. The applicant must still establish the relevant requirements, including a good arguable case, a real risk of dissipation, and that it is just and convenient to grant the order. Delay is relevant to the exercise of discretion, but does not necessarily defeat relief where other evidence establishes a real dissipation risk.

The claimant sought a domestic freezing order against the defendants under Articles 47.2 and 47.3 of the Judgments Regulation. The application followed the registration in England of a freezing order made by the Cypriot courts and the judge’s conclusion in a related judgment that the registered order was not then fully effective and enforceable.

The defendants accepted that there was a good arguable case, but opposed relief on the grounds of delay and insufficient evidence of a real risk of dissipation. The principal legal issue was whether the Judgments Regulation required the English court to grant protective relief as of right, or whether the court retained discretion to apply the ordinary principles governing freezing orders.

1. Application granted. The court held that Articles 47.2 and 47.3 of the Judgments Regulation did not remove the English court’s discretion. The applicant had a right to seek protective measures, but had to take the available domestic measure as it found it. The court could therefore apply conventional English principles to a freezing order application. The reasoning in Capelloni v Peltmans [1985] ECR 3147 and Banco Nacionale did not establish an automatic entitlement.
2. The court applied the ordinary freezing-order requirements identified in Thane Investments v Tomlinson [2003] EWCA Civ. 1272: a good arguable case, a real risk that judgment would go unsatisfied because of asset disposal, and that relief would be just and convenient. The claimant had established a good arguable case, and the evidence concerning payment instructions connected with Lucca Properties, their timing, links to the defendants, the bank’s response, the breadth of the Cypriot order and related evidence was sufficiently solid to establish a dissipation risk.
3. Delay was relevant both to the genuineness of the alleged dissipation risk and to the overall discretionary justice of the application. Applying the principles in Cherney v Neuman [2009] EWHC 1743 (Ch), the unexplained delay was regrettable but did not outweigh the evidence of risk. No particular prejudice to the defendants had been identified.
4. The order was to run only until determination of the pending appeal concerning the registration order, with the precise terms to be settled after hearing the parties.

The application followed registration in England of the Cypriot freezing order by Master Leslie in February 2015. The judgment records that an appeal against the registration order was due to be heard at the end of July 2016. This court granted interim domestic freezing relief pending determination of that appeal.