Christofi v National Bank of Greece (Cyprus) Ltd

Article 43(5) of the Regulation excludes any general national power to extend the appeal period for parties domiciled in a Member State. The prescribed one- or two-month periods provide the intended balance between rapid enforcement and an effective right of appeal.

• Only a residual extension is available where strict adherence would impair the essence of the right of appeal and breach Article 6.
• National procedural rules may supplement the Regulation, but cannot undermine its uniformity or effectiveness.
• Where discretion exists, relief is assessed under the Denton test, informed by the Regulation’s policy.

The respondent obtained registration in England of a Cypriot settlement order. The appellant, domiciled in Cyprus, was served with the registration order on 11 July 2014 but filed her appeal 22 days late.

Andrews J held that the court had no general jurisdiction to extend the time under Article 43(5) of Council Regulation (EC) No 44/2001, subject only to an exceptional Article 6 case. She also held that, if jurisdiction existed, she would refuse an extension. The appeal concerned jurisdiction and, alternatively, the exercise of discretion.

Appeal dismissed. The Court of Appeal unanimously upheld Andrews J’s decision on both preliminary issues.

1. Article 43(5). The Regulation establishes an autonomous and uniform system for the recognition and enforcement of judgments. National procedural law may supplement that system, including on matters left to the lex fori, but may not impair its simplicity, uniformity or effectiveness. The prescribed time limits embody the balance between rapid enforcement and protection of the defendant’s right of appeal.
2. Categories A and B. A general judicial power to extend the one- or two-month periods for parties domiciled in a Regulation Member State would permit divergent national practices and undermine the Regulation. The final sentence of Article 43(5) confirms that the two-month period for a Category B party is sufficient protection against the difficulties of arranging a defence abroad. The only residual exception is where strict adherence would impair the essence of the right of appeal and breach Article 6 of the European Convention on Human Rights.
3. CPR Part 74.8. The structure of the rule reinforces that conclusion. Part 74.8(3) provides the circumscribed, prospective route for Category C parties. Part 74.8(4) contains no equivalent route for Categories A and B, so the general powers in Parts 3.1(2)(a) and 52.6(1) do not apply to them. The Court’s additional observations on Category C parties were unnecessary to the appeal.
4. Article 14. Assuming that the issue fell within Article 6’s ambit and that the distinction could constitute indirect nationality discrimination, the different treatment of Category B and Category C parties was reasonable and objectively justifiable. The discrimination argument therefore failed.
5. Alternative discretion. If jurisdiction to extend time had existed, the application had to be approached under the three-stage test in Denton v TH White Ltd [2014] EWCA Civ 906 and R (Hysaj) v Home Secretary [2014] EWCA Civ 1633, with the third stage informed by the Regulation’s policy. The delay was serious, there was no good reason for it, and the absence of prejudice did not outweigh the need to respect the deliberately tight timetable. The judge’s exercise of discretion disclosed no error and would have produced the same result if exercised afresh.

1. Court of Appeal (Civil Division) dismissed the appeal and upheld the decision on both preliminary issues: [2018] EWCA Civ 413.
2. High Court (Queen’s Bench Division) held that there was no general jurisdiction to extend the Article 43(5) time limit, subject to an exceptional Article 6 case, and alternatively refused an extension: [2015] EWHC 986 (QB).