Registration and enforcement of judgments – Judgment of courts of Republic of Cyprus relating to land in northern Cyprus – Land falling outside area controlled by Republic – Land within area controlled by Turkish Cypriot authorities – Appellant seeking registration and enforcement of judgments in UK courts – Article 34(1) of Council Regulation (EC) 44/2001 – Whether international public policy grounds for refusing registration and enforcement – Appeal allowed
The respondents were an English couple. In 2002, they purchased a holiday home in northern Cyprus from a vendor claiming title through the Turkish Cypriot authorities. By two judgments, dated November 2004 and April 2005, the Nicosia District Court in the Republic of Cyprus made orders against the respondents. The orders required the immediate demolition of a villa, a pool and fencing on the property and its delivery with free possession to the appellant, a Greek Cypriot, who claimed to be the true owner having been dispossessed by the 1974 Turkish invasion of the north of the island; orders for damages and costs were also made. The disputed land lay within the area that, in 1983, the Turkish administration had declared to be part of the Turkish Republic of Northern Cyprus, which status was not recognised by any state except Turkey. The land continued to be controlled by the Turkish Cypriot administration and therefore fell outside the area over which the government of the Republic of Cyprus exercised control and where Nicosia District Court was situated.
In October 2005, a High Court order required the judgments to be registered in, and declared enforceable by, the High Court pursuant to Council Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The respondents’ appeal against that decision was allowed by a High Court judge. The appellant appealed to the Court of Appeal, which referred certain issues to the European Court of Justice (ECJ). The ECJ decided that: (i) the suspension of the acquis communautaire in northern Cyprus, effected by article 1(1) of Protocol 10 of the 2003 Act of Accession of Cyprus to the European Union, did not preclude the application of Council Regulation (EC) 44/2001 to a judgment given by a Cypriot court sitting in the area of the island effectively controlled by the Cypriot government but concerning land in areas not so controlled; (ii) article 35(1) of the regulation did not authorise the court of a member state to refuse recognition or enforcement of such a judgment; and (iii) the fact that the judgment could not, as a practical matter, be enforced owing to the lack of effective control of the area in question did not constitute a ground for refusing recognition or enforcement under article 34(1), concerning refusal to recognise judgments on grounds relating to public policy in a member state, or render such a judgment unenforceable under article 38(1).
Those decisions indicated that the appeal ought to be allowed, subject to further matters raised by the respondents as to whether: (i) enforcement of the judgments should be denied on public policy grounds, or further questions referred to the ECJ on that issue, on the basis that enforcement would undermine the international public policy of pursuing a peaceful, negotiated comprehensive settlement in Cyprus; and (ii) the ECJ ruling was affected by apparent bias on the part of Judge Skouris, the president of the court, following contact between him and Cypriot representatives before and during the court’s consideration of the case, his close ties with the Republic of Cyprus and the conferring of an award on him by the president of Cyprus.
Held: The appeal was allowed.
(1) Neither the legitimacy of the ECJ judgment nor the duties of the UK courts with regards to article 34(1), were overridden by reference to the acknowledged powers of de facto authorities under customary international law. A public policy objection to the enforcement of the Cypriot court’s judgments could not be founded unless some principle of international public policy was recognised by the UK courts, acting judicially, as requiring a conclusion that enforcement was manifestly contrary to UK public policy. The international consensus on a peaceful settlement in Cyprus and the UN Security Council’s strong support for efforts to achieve that settlement did not justify such a conclusion. Otherwise, the courts, which were concerned to uphold the rule of law consistently, would need to assess the issues arising in the Cypriot dispute, the merits of the political issues involved, both national and international, and their effect on UK public policy. That was not a function that the courts could or should perform, save in exceptional circumstances. The Republic of Cyprus had not breached international law in the instant case. The notion of international public policy was more nebulous, and international support for attempts to achieve a settlement in Cyprus did not convert into an obligation on a UK court to assess whether a decision of the court did or did not support the peace process.
If, contrary to that view, an assessment had to be made, the importance of the peace process in Cyprus would need to be balanced against other international public policy concepts, the requirement for mutual trust in the administration of justice in the community and the UK’s subsisting obligations to respect the sovereignty, independence and territorial integrity of the Republic of Cyprus, which included respect for the courts as the judicial arm of the state. Those obligations pointed towards enforcing judgments of the courts in Cyprus.
Consequently, the recognition and enforcement of the judgments would not infringe any fundamental principle within the legal order of the UK: Bamberski v Krombach [2001] QB 709 applied. That conclusion would be unaffected even if the UK government were to indicate that it attached priority to the avoidance of prejudice to negotiations and that prejudice would arise if the Cypriot judgments were enforced. Public policy did not depend on, and could not be determined by, the thinking of the government on foreign policy because that would breach a rule of law essential in the legal order of the UK.
(2) The ECJ president had not been biased. The administration of justice in the community required mutual trust, and even where member states were in dispute, no objection could be made to the presence of a judge on the ground of nationality. Judges, and the states from which they came, would inevitably have closer links with some member states than with others. Making official visits and receiving visiting delegations was a valuable and appropriate part of the office of president. Neither the conferring of the honour by the president of Cyprus nor the remarks of a political nature made by him on that occasion, gave rise to any apparent bias on the part of the ECJ president. The reasonably informed observer would have no fears that such remarks might influence him in his judicial capacity.
Thomas Beazley QC, Professor Vaughan Lowe QC and Colin West (instructed by Holman, Fenwick & Willan LLP) appeared for the appellant; Cherie Booth QC, Nicholas Green QC and Dr Angela Ward (instructed by Herbert Smith LLP) appeared for the respondents.
Sally Dobson, barrister
