Christofi v National Bank of Greece (Cyprus) Ltd [2015] EWHC 986 (QB)

Appeal Ref: QB 2014-0511 and QB 2014-0586[2015] EWHC 986 (QB)IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONON APPEAL FROM DEPUTY MASTER EYREVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/04/2015
Before
MRS JUSTICE ANDREWS DBE
Between
IOANNA CHRISTOFIAppellantNATIONAL BANK OF GREECE (CYPRUS) LTDRespondent
Daniel Warents (instructed by Fletcher Day) for AppellantCamilla Lamont (instructed by Charles Russell Speechlys LLP) for RespondentHearing Hearing date: 26 March 2015
Judgment
[1]On 21 July 2006 the Respondent Bank (“the Bank”) issued proceedings in the District Court of Nicosia, Cyprus, against the Appellant (“Mrs Christofi”) and her husband, Lambros Christofi, under action number 4900/2006. The proceedings related to sums alleged to be due under a loan agreement dated 4 September 2002 made between the Bank and Mr Christofi, and a personal guarantee and mortgage over certain property in Cyprus given by Mrs Christofi as security for that loan.[2]The proceedings were served personally on Mr Christofi on 31 July 2006. It is the Bank’s case that this was valid service on both Mr and Mrs Christofi under the law of Cyprus. A firm of advocates in Cyprus, Kallis & Kallis, entered an appearance ostensibly on behalf of both Mr and Mrs Christofi, and defended the proceedings for around 4½ years, filing a defence and counterclaim. Eventually the proceedings were compromised in terms of a consent order made by the Cypriot Court (“the Settlement Order”) under which it was ordered that Mrs Christofi, jointly and severally with her husband, pay: a) The sum of €2,221,181.90 plus interest to the date of settlement and b) The sum of €12,443 for costs, plus interest to the date of settlement, a fee of €102 for the settlement order and €1783.56 VAT.[3]The Settlement Order provided for a suspension of execution until 30 April 2011, on the basis that if Mr and Mrs Christofi paid the sum of €3,519,770.96 plus costs by that date the judgment would be deemed paid in full. However, no payment was made by the deadline. The Bank therefore started to take action to enforce the terms of the Settlement Order, first in Cyprus, and then in the UK. By the time that the Bank sought registration of the Settlement Order in the UK, the total amount due under it was calculated at €7,368,044.88. Credit was given for some relatively small amounts recovered in Cyprus.[4]On 14 May 2014, following a “without notice” application made by the Bank pursuant to CPR 74.3, Deputy Master Eyre registered the Settlement Order for enforcement pursuant to Council Regulation EC 44/2001 (“the Judgments Regulation”). He made two Registration Orders, it appears in order to cater for the alternative possibilities that Mrs Christofi was domiciled in England or in Cyprus, but nothing turns on this.[5]Article 34(2) of the Judgments Regulation sets out the limited grounds on which a judgment of another EU Member State shall be refused recognition. One of these is:
“where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so.”
[6]The purpose of Article 34(2) of the Judgments Regulation (and of its predecessor, Article 27(2) of the Brussels Convention 1968) is to ensure that a judgment is not recognized or enforced if the defendant has had no opportunity of defending himself before the court first seised (see e.g. Case 166/80 Klomps v Michel [1981] ECR 1593, at [9] and Case C-172/91 Sonntag v Waidmann [1993] ECR 1-1963, at [38]). The issue of whether a judgment or order is given “in default of appearance” is not determined by the rules of procedure of the Contracting State in which the judgment or order is obtained, or by the law in the Contracting State where it is sought to be enforced. It is treated as an issue of fact. Thus the fact that service was properly effected under the law of the court of origin, as the Bank contends it was, does not preclude re-examination of whether it was effected in sufficient time to enable the defendant to arrange a defence.[7]Mrs Christofi claims that the first time she became aware of the existence of the proceedings in Cyprus was when she was served with notice of the orders made by Deputy Master Eyre. She alleges that her husband deliberately kept the proceedings from her, that Kallis & Kallis had no authority to represent her in the Cypriot proceedings, and that the signature on a letter of retainer purporting to be her signature is a forgery (though she has adduced no expert evidence in support of that assertion). Thus she contends this case is similar to Case C-78/95 Hendrickman v Magenta Drug &Verlag GmbH, (10 October 1996) in which the Court of Justice of the European Union (CJEU) held that an order obtained against a defendant in Germany with the purported consent of a lawyer in circumstances where the defendant had not instructed the lawyer was to be treated as given in default of appearance because “where proceedings are initiated against a person without his knowledge and a lawyer appears before the court first seised on his behalf but without his authority, such a person isquite powerless to defend himself.”[8]Mrs Christofi seeks to appeal the registration of the Settlement Order on those grounds, pursuant to CPR 74.8. Such an appeal does not require permission, but there are time limits for appealing. In this case, the time prescribed by Article 43(5) of the Judgments Regulation is two months from the date of service upon Mrs Christofi of the Registration Orders in person or at her residence, it being common ground that Mrs Christofi is domiciled in Cyprus. That time limit is reflected in CPR 74.8(4) which provides that:
“The appellant’s notice must be served a) where the appeal is against the granting of registration, within i) one month; or ii) Where service is to be effected on a party not domiciled within the jurisdiction, two months, of service of the registration order.”
Although sub-paragraph (a) (ii) could be interpreted as referring to service of the appellant’s notice on a respondent who is domiciled outside the jurisdiction, it is plainly intended to mean that where service of the registration order is to be effected on a party not domiciled within the jurisdiction, that person has two months from service on him in which to serve the appellant’s notice on the opposing party. The upshot is that the non-UK domiciled appellant must both file the appellant’s notice with the court and serve it on his opponent within two months of service on him of the registration order. a) where the appeal is against the granting of registration, within i) one month; or ii) Where service is to be effected on a party not domiciled within the jurisdiction, two months, of service of the registration order.”[9]On 17 June 2014 the Bank obtained interim charging orders over Mrs Christofi’s English properties. However, its solicitors, Charles Russell, were not notified of this by the court until after they sent a chasing letter on 7 July 2014. Further inquiries of the court office revealed that a hearing of the application to make the charging orders final was listed for 30 July 2014. Once Charles Russell were aware of the situation they acted with commendable speed. Mrs Christofi was served with copies of the Registration Orders and the interim charging orders on 11 July 2014, under cover of a letter from Charles Russell dated 8 July, which also enclosed a copy of the Settlement Order.[10]It is accepted by both parties that the time for filing and serving the appeal therefore expired on 11 September 2014. However, the appeal was neither filed nor served within that time limit. The appellants’ notice was filed on 30 September 2014 and served on 3 October 2014, 22 days out of time. The evidence before me does not adequately explain why such a long delay occurred.[11]On 22 July 2014, Mrs Christofi’s solicitors, Fletcher Day, wrote to Charles Russell to say that they had recently been instructed, and that their client had only received Charles Russell’s letter of 8 July on 11 July. They said that the letter was the first their client knew of the Settlement Order, the Registration Orders or the interim charging orders, and complained that the Bank should not have taken steps to enforce the registered judgment until after the time limit for appealing the registration had expired (a complaint which Mr Warents, who represented Mrs Christofi on this appeal, sensibly did not pursue). They said that Mrs Christofi intended to commence proceedings in Cyprus to set aside the Settlement Order and had instructed Cypriot lawyers to do so; she would also be appealing against the Registration Orders “in due course”.[12]Fletcher Day pointed out that the question whether the interim charging orders should be made final could not be resolved at a hearing on 30 July 2014 if Mrs Christofi was going to appeal against the Registration Orders. They proposed a consent order agreeing to the vacation of the hearing on 30 July, on the basis that their client should inform the Court if an appeal against the Registration Orders was filed, and if the Court were so informed then the Bank’s application for final charging orders should abide the outcome of that appeal. In the event that Mrs Christofi did not file an appeal against the Registration Orders by 4pm on 11 September, the hearing of the Bank’s application for final charging orders should be listed for the first available date thereafter.[13]It is clear from that proposal that Fletcher Day were well aware of the deadline for appealing. The reference to informing the Court if an appeal was filed was presumably to ensure that those responsible for listing the hearing of the application to make the charging orders final were kept apprised of developments. They would not necessarily otherwise know that there was an appeal pending, as appeals are dealt with administratively by a different section of the court office.[14]In their letter in response, sent on 25 July 2014, Charles Russell disputed Mrs Christofi’s alleged lack of prior knowledge of the Settlement Order and contended that there was no basis for setting it aside, as it had been made by consent and the time limit for an appeal (in Cyprus) had expired. They noted the intention of Mrs Christofi to appeal the Registration Order “in due course”. They then said that in the interests of saving costs, the Bank would be willing to agree to an adjournment of the hearing of the final charging order application on the basis that Mrs Christofi accepted that she had been served with, inter alia, the Registration Orders. They enclosed a draft Consent Order, which was subsequently agreed and signed.[15]The Consent Order, which is dated 29 July 2014, records the service of the Registration Orders on Mrs Christofi, and agrees to vacate the hearing on 30 July. It then provides that “the Defendant shall notify the Court and the Claimant no later than 4pm on 30 September 2014 if she has filed an appeal against the Registration Orders” (my emphasis). If such notification is given then the hearing of the application to make the Interim Charging Orders final will be adjourned until after the appeal is determined; if not, the Bank may apply to have the hearing relisted for the first available date after 30 October 2014.[16]The Consent Order is plainly directed at the practicalities of re-fixing the vacated hearing of the application to make the charging orders final. The timetable would depend upon whether or not Mrs Christofi had appealed the Registration Orders. It seems to have been envisaged that the court office would probably be fixing dates at least a month ahead, so that if the Bank wanted to have a chance of getting a hearing in November or December 2014, those responsible for the listing would need to be told by 30 September at the latest that there had been no appeal. If the Bank’s solicitors then applied for a date, they would be in a position to fix a hearing for some time after 30 October.[17]At first sight, the requirement to notify the Bank of the filing of the appeal appears otiose, since Charles Russell would know if the appellant’s notice had been served on them before 4pm on 11 September. However, Charles Russell would not know that Fletcher Day had confirmed to the relevant court office by the agreed date whether or not an appeal was pending, unless they were told. Since they were the party responsible for re-fixing the date for the hearing to make the charging orders absolute, a requirement that they be copied in to the relevant correspondence with the court would save them having to make their own inquiries, which might cause further delay.[18]Whatever the thinking behind it, the agreement was to notify the Bank if an appeal had already been filed. The Consent Order did not purport to extend the time for appealing, and could not reasonably have been interpreted as doing so. The evidence of Mr Hill of Fletcher Day is that at the time the Consent Order was entered into, and until shortly before 30 September 2014, his firm “was working on the basis that the last date for making the Appeal was 30 September 2014”. That was a serious mistake.[19]There was no further correspondence from Fletcher Day until long after the time limit for appealing had expired. On 26 September, they wrote to Charles Russell to say that their client’s “current instructions are to appeal the Registration Order and we have been working to this end” but that Counsel was away and that a conference call had been arranged for 29 September. They asked for agreement to “an extension of time in which to issue our client’s appeal against the Registration Order until 4pm Friday 10 October 2014” and said they did not believe the extension would cause any prejudice to the Bank, since the case could not be relisted until after 30 October in any event.[20]This letter betrayed a number of fundamental misconceptions on the part of the writer, not least that the parties had the power to agree to extend time for appealing (contrary to the express provisions of CPR 52.6). Charles Russell’s response was that their client was agreeable to the “short extension to 10 October 2014 requested regarding the deadline for your client to inform us of any appeal of the Registration Order to enable your client to take Counsel’s advice” (my emphasis). The solicitor at Charles Russell appears not to have applied her mind to the question whether time for appealing had already expired, because the letter would not have been written in those terms if she had. In any event, presumably because the agreement did not go as far as they wished, Fletcher Day took steps to file the appellant’s notice with the Court on 30 September. They were told by the Court office, correctly, that they were out of time. The time taken up in seeking to resolve the question whether they needed to formally apply for permission to appeal out of time led to the appellant’s notice being served on 3 October, the next working day.[21]It was readily apparent at the hearing of this matter on 26 March 2015, nearly six months later, that it would be impossible for the Court to determine the substantive appeal within the allotted time; Mrs Christofi was not available for cross-examination and there was no order requiring her attendance. It is unusual for the Court to be asked to determine a dispute about the genuineness of a signature in the absence of expert evidence. In such circumstances, it would be essential for the Court to hear, see and evaluate the evidence of the key witness of fact. However, before one even gets to the merits of the substantive appeal there are two preliminary issues that have to be determined, namely: i) Does the court have the power to extend time for appealing? ii) If it does, should the court extend time in this case?[22]The first of these issues is plainly one of general importance; moreover, it appears to have been the subject of conflicting decisions by this Court. In the light of this, it is possible that the matter may require resolution by the Court of Appeal (which would be empowered to refer the matter to the CJEU if it considered it appropriate to do so). Therefore, both counsel proposed, and I agreed, that the sensible course would be for me to determine the two preliminary issues, and to leave over any decision on the merits of the substantive appeal to abide the outcome of any appeal from this judgment.

Question 1: Does the Court have the power to extend time for appealing?

[23]The starting point in interpreting the provisions of Article 43(5) of the Judgments Regulation must be the policy underpinning the Regulation and its predecessors: see e.g. Case 148/84 Deutsche Genossenschaftsbank v SA Brasserie du Pecheur [1985] 3 ECR 1987 at [16] and [17], in which it was established that the Brussels Convention established an autonomous and complete system for the recognition and enforcement of judgments, including for appeals, which excludes the possibility of any separate challenges to an enforcement order under domestic law. Thus third parties affected by the foreign judgment could not be granted a right under the domestic law of the country of enforcement to appeal against its registration, as the only person granted such a right under the Convention is the defendant. Such a third party could only avail himself of any domestic remedy available at the stage of execution of the judgment or order.[24]The Preamble to the Brussels Convention refers to the undertaking by the parties to the Treaty establishing the European Economic Community “to secure the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals” and to the need “to introduce an expeditious procedure for securing the enforcement of judgments, authentic instruments and court settlements”. This policy of simplicity and swiftness is reflected in the second Preamble to the Judgments Regulation which recognizes that differences between national rules governing recognition of judgments hamper the sound operation of the internal market. It states that provisions to “simplify the formalities with a view to rapid and simple recognition and enforcement of judgments from Member States bound by this Regulation are essential”.[25]The Preamble goes on to explain how it is envisaged that this policy will be implemented in paragraphs 17 and 18:
“(17) By virtue of the same principle of mutual trust, the procedure for making enforceable in one Member State a judgment given in another must be efficient and rapid. To that end, the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the document supplied, without there being any possibility for the court to raise of its own motion any of the grounds for non-enforcement provided for by this Regulation. (18) However, respect for the rights of the defence means that the defendant should be able to appeal in an adversarial procedure, against the declaration of enforceability, if he considers one of the grounds for non-enforcement to be present…” (18) However, respect for the rights of the defence means that the defendant should be able to appeal in an adversarial procedure, against the declaration of enforceability, if he considers one of the grounds for non-enforcement to be present…”
[26]It follows that a balance must be struck between the right of the defendant to challenge the recognition order by appeal on one of the limited grounds permitted by the Regulation, and the need for expedition. That balance is struck in Article 43(5) which provides that:
“An appeal against the declaration of enforceability is to be lodged within one month of service thereof. If the party against whom enforcement is sought is domiciled in a Member State other than that in which the declaration of enforceability was given, the time for appealing shall be two months and shall run from the date of service, either on him in person or at his residence. No extension of time may be granted on account of distance.”
[27]The language used (“is to be lodged” and “shall be two months”) indicates that the time limits set are intended to be mandatory, which would accord with the underlying policy that enforcement should be rapid, and thus that there should be a limited (and relatively short) time for appealing. However it was recognized that a defendant domiciled in a Contracting State other than the State of enforcement may be disadvantaged in preparing a challenge within a month, and the draftsman made two express modifications to cater for those perceived disadvantages.[28]First, time does not start to run until there has been actual service of the order for enforcement on the party concerned in person or at his residence. That means delivering a copy of the order to a person who is present and empowered by law to receive it or, if there is no such person, to a competent authority (see the commentary in the Jenard Report, [1979] O.J. C59). This requirement avoids the danger that in consequence of the application of domestic rules of service, time for appealing will run out before the defendant becomes aware of the registration order.[29]Secondly, the period for appealing is twice the normal time prescribed – two months instead of one. The final sentence makes it clear that those two concessions are intended to strike the balance between giving the defendant domiciled in another Contracting State a fair opportunity to prepare his appeal and the need for uniformity and expeditious enforcement, by negating any prospect of a further extension of time to cater for the problems caused by distance.[30]That interpretation of Article 43(5) is consistent with the Jenard Report, which in its commentary upon Article 36 of the Brussels Convention (which is in identical terms) states that it draws a distinction between the situation in which the prospective appellant is domiciled in the State in which the decision to enforce was given, and the situation in which he is domiciled in another Contracting State. It says that in the former situation, (which I shall call Category A1) “the period is one month; the moment from which time begins to run is determined by the law of [the State of enforcement] from which there is no reason to derogate.” Thus, for example, a person domiciled in England would not be able to complain about the impact on the commencement of the one month time limit of being served by first class post. In the latter situation, (which I shall call Category B) the period is two months, and runs from the date when the decision was served either on the party in person or at his residence:
“the purpose of this rule, which derogates from some national laws, is to protect the respondent and to prevent his being deprived of a remedy because he had not been informed of the decision in sufficient time to contest it. No extension of time may be granted on account of distance, as the time allowed is sufficient to enable the party concerned to contest the decision, if he is so minded.”
[31]The argument that by excluding the possibility of an extension of time only on grounds of distance, the draftsman has envisaged an extension being granted for other reasons makes no sense in the light of those underlying policy considerations and the explanation given in the Jenard Report. The judgment debtor domiciled in the State of enforcement should have no need of an extension of time, and is bound by the rules of that State regarding service. A person domiciled in a different EU Member State from the State of enforcement is being afforded a more generous time for appealing in order to cater for any disadvantages caused by his being domiciled elsewhere. If he cannot obtain a further extension on grounds of distance, and time cannot run against him without his knowledge, then it would seem perverse to allow a further extension on other grounds. Such a person is already considered to be adequately protected against the potential unfairness of a tight mandatory deadline for appeal.[32]The real problem is that Article 43(5) does not expressly cater for the position of a defendant who is domiciled outside the EU altogether. On the face of it, one might expect such a party to suffer from the same potential disadvantages (and thus to be put in at least the same position) as a party domiciled in a different Contracting State. However, on the face of it, the Regulation treats such a person as subject to the same rules and deadlines as a person domiciled in the State of enforcement. Jenard says this:
“If the party is domiciled outside the Community, the period within which an appeal may be lodged runs from the date when the decision is served or is deemed to have been served according to the law of the State in which the decision was given. In this case, the period of one month may be extended on account of distance in accordance with the law of that State.”
[33]Mr Warents submitted that this clearly indicates that a non-EU domiciliary is to be treated as subject to the same one month time limit which applies to a party domiciled in the State of enforcement, rather than the two month limit applicable to those domiciled in other EU Member States, unless that rule is modified by domestic law. Thus rather than being in a completely independent category, Category C, or being treated as falling into Category B by analogy, such a person falls into a sub-category of Category A (Category A2). I agree with that analysis.[34]It is envisaged by Jenard that the procedural rules of the State of enforcement can be used to extend time so as to cater for the disadvantages suffered by such a person on account of distance. It is not easy to discern from the language of the Convention or Judgments Regulation where that power comes from. It appears to emanate from the fact that the last sentence of Article 43(5), which precludes extensions of time on grounds of distance, expressly applies only to domiciliaries of other Convention States, for the reasons stated in the Jenard Report. Jenard appears to infer from this limitation (and the reasons justifying it) an acceptance in principle that, conversely, a State is permitted to legislate for an extension of the one-month period to cater for the potential disadvantages that distance would cause for a party domiciled outside the EU.[35]Mr Warents submitted that once it is conceded that there is a power to extend time for some persons falling within Category A, there is nothing in the Regulation itself to draw a distinctionbetween different persons falling into that category, let alone between persons within Category A and persons within Category B. Thus, by necessary implication, there must also be a power to extend time for persons subject to the two month time limit, although not on grounds of distance. It seems to me that this argument suffers from a false logic, because the initial premise that all persons falling in Category A are to be treated alike is not established. Indeed, Jenard implies the reverse, by stating that there is no reason to derogate from domestic rules of service in the case of persons domiciled in the State of enforcement, i.e. those falling within Category A1. That suggests there may be a reason to derogate from those rules in respect of persons domiciled elsewhere (whether within or outside the EU); hence the express derogations provided for in a Category B case and the implicit right to derogate in a Category A2 case. Mr Warents contended that it is the language of the Regulation, not the commentary in Jenard that matters; however, the latter authoritatively informs the interpretation of the former.[36]Those who drafted the Judgments Regulation (and the Conventions that preceded it) were concerned to ensure that the right of appeal is not unfairly impeded, or rendered nugatory, by the defendant’s distance from the State of enforcement. Plainly that concern would not apply to parties who are domiciled in the State of enforcement; they can have no excuse for not meeting the one month time limit on grounds of distance. Parties domiciled elsewhere in the EU are expressly catered for and need no further concessions. Jenard envisages that the State of enforcement may ameliorate the disadvantages for non-EU domiciliaries to the extent of providing for extensions of the one month time limit on account of distance. How such provision is made is a matter for the State concerned. However, it cannot be inferred that each State of enforcement has a free rein in granting extensions of time to such defendants because that would completely undermine the policy underlying the Convention and the Judgments Regulation spelled out in Brasserie du Pecheur, and it would be inconsistent with the system laid down for enforcement and appeals against enforcement orders being self-contained. The power to extend time in a Category A2 case must be exercised consistently with the policy in the Convention and the Judgments Regulation.[37]In my judgment, if that State were to make rules putting such a person in the same position as someone falling into Category B, it would not be acting contrary to the spirit and intention of the Brussels Convention or the Judgments Regulation. On the contrary, it would achieve a desirable degree of uniformity and certainty. In England and Wales, the Rules Committee has exercised that power by giving persons domiciled outside the EU the same time for appealing against the enforcement order as persons domiciled elsewhere in the EU. Thus CPR 74.8(4)(a)(ii) draws no distinction between persons domiciled in other States within or outside the EU; the time limit is two months from the date of service. That is deemed to be an adequate time for filing notice of appeal.[38]However the rules also specifically provide that if the judgment debtor is not domiciled within the EU, if “an application to extend time for appealing is made within two months of service of the registration order, the court may extend the period for filing an appellant’s notice against the order granting registration, but not on grounds of distance” (CPR 74.8(3)). This express power to extend time for appealing is confined to persons domiciled in a non-EU State, which on the face of it (and consistently with the language of the Judgments Regulation) implies that the Rules Committee envisaged that there should be no such power in respect of persons domiciled within this jurisdiction or elsewhere within the EU.[39]Ms Lamont, on behalf of the Bank, submitted that this betrayed some confusion on the part of the Rules Committee, and that consistently with the Jenard Report, there should be no such prohibition: on the contrary, the rule should have permitted a further extension on grounds of distance. However, if the extension of the time limit from one to two months is perceived to adequately cater for the disadvantages caused by distance, as I consider to have been the intention, the prohibition of a further extension on those grounds makes complete sense. It is the fact that the rules envisage that a further extension may be permitted on other grounds that causes a difficulty. The Jenard Report only expressly refers to an extension of time on grounds of distance. The question whether the Regulation implicitly permits an extension on other grounds is a matter to which I shall return when considering the previous authorities. At this juncture, I simply point out that extending the time limit does not cater for the other potential disadvantage caused by domestic rules of service that the Regulation has expressly addressed in the case of persons domiciled elsewhere in the EU, as time could still start to run against a non-EU defendant at a time when he is unaware of the Registration order.[40]Thus, if the matter were free from domestic or EU authority I would interpret the time limit applicable to someone in Mrs Christofi’s position as mandatory and strict, with no general discretion to extend time. The same would be true of a person domiciled in the state of enforcement (a Category A1 person). He will be taken to have agreed to be bound by the procedural rules concerning service of documents in the country of his own domicile. The distinction in treatment between these two categories is clearly drawn in the wording of the Brussels Convention and the Judgments Regulation, and the underlying policy behind the more favourable treatment afforded to someone domiciled in another Contracting State is explained by Jenard. The implicit power to extend time for appealing in the case of persons domiciled outside the EU on grounds of distance, referred to in the Jenard Report, recognizes that they may also be at a disadvantage by reason of distance and enables Contracting States, if they wish, at least to allow such persons the same period for appealing as is expressly afforded to those domiciled elsewhere in the EU. The power to extend time must be confined to Category A2 defendants, because fairness to the other categories of defendant is already sufficiently catered for.[41]I would add just one caveat. Even when there is a mandatory time limit for appealing under a domestic statute, and no power to extend time, this jurisdiction recognizes a limited class of case in which the courts may entertain an out of time appeal. That is where the application of the time limit would impair the very essence of the right of appeal, and strict adherence to it would infringe Article 6 of the European Convention on Human Rights: R (Adesina and Baines) v The Nursing and Midwifery Council, [2013] EWCA Civ 818, following the views expressed by Lord Mance in Lukaszewski and Pomiechowski v Poland [2012] 1 WLR 1604 at [33]-[37]. The discretion in the court to ameliorate the absolute approach in exceptional circumstances still requires the appellant “personally to have done all he can to bring the appeal timeously.” In Adesina and Baines Maurice Kay LJ gave the examples of a person who falls seriously ill immediately upon receipt of the decision and remains in intensive care whilst the time limit expires, or a case in which the relevant document is sent by post and never arrives, but is deemed served on the day after it was posted.[42]In my judgment, by parity of reasoning, a similar exception would probably apply to the mandatory time limits under the Regulation, since the underlying policy is designed to be compatible with Article 6. However, the present case is far removed from the situation in which such a limited exception could arguably apply.[43]With that provisional view in mind, I turn to the previous European and domestic case law. The first case in time is Case 145/86 Hoffmann v Krieg [1988] ECR 645 (“Hoffmann”). An order had been made by a German court for a husband to make maintenance payments to his wife as a separated spouse. He then obtained a decree of divorce in the Netherlands. Thereafter, the wife registered the order for maintenance in the Netherlands. The husband was served with notice of the enforcement order, but did not appeal. At a later date, the wife obtained an order attaching his earnings and the husband sought to have that order discharged on grounds that he could have raised on an appeal against the enforcement of the German order. The CJEU was asked, among other matters, whether the scheme of the Brussels Convention precluded him from pleading those matters, and answered that question in the affirmative.[44]The court drew a distinction between enforcement, which was governed by the Convention, and execution of a foreign judgment or order once an order for its enforcement had been obtained, which was a matter for the domestic law of the State of enforcement. However it held that the procedural rules of the State in which enforcement is sought may not impair the effectiveness of the scheme of the Convention as regards enforcement orders. Allowing a person who had not appealed against enforcement to challenge the execution of the order would be tantamount to again calling into question the enforcement order after the expiry of the strict time-limit laid down by the second paragraph of Article 36 of the Convention, and would thereby render that provision ineffective. It added, at [31]:
“in view of the mandatory nature of the time-limit laid down by Article 36 of the Convention, the national court must ensure that it is observed.”
[45]That case therefore lends support to the proposition that the time limit applicable to someone in Category B is strict. It cannot be circumvented by the application of domestic procedural rules, and the national court must ensure its observance. Those dicta are inconsistent with there being any discretion to extend time.[46]The next case chronologically C-220/95, Van den Boogaard v Laumen, (“Van den Boogaard”) was relied upon by Mr Warents, though Ms Lamont submitted it was either neutral or supported the Bank’s position. This case again concerned a matrimonial dispute. The issue referred by the Netherlands court to the CJEU was whether a decision of the English High Court in proceedings for ancillary relief was to be classified as “a judgment given in matters relating to maintenance” or “a judgment given in a matter relating to rights in property arising out of a matrimonial relationship”. The Court noted in paragraph [16] that it had been asserted that the husband had lodged an appeal after the two-month period laid down in Article 36 of the Brussels Convention for appealing against enforcement. It said that did not affect its jurisdiction to make a preliminary ruling on the issues referred to it by the Netherlands court. It was solely a matter for the national court to determine the need for a preliminary ruling and the relevance of the questions submitted to the CJEU.[47]I cannot see how that case provides any support for Mr Warents’ contention that the court in the State of enforcement has a power to extend the time for an appeal. The CJEU was dealing with the contention that it would be pointless for it to rule on the reference because the appeal was out of time. It took the view that it would be inappropriate for it to question why the national court sent it the reference, or to refuse to answer the questions on the basis that the answers would be academic. The authors of Briggs and Rees, Civil Jurisdiction and Judgments (5th Edition) suggest in a footnote on page 710 that “it appears from this case that compliance [with] and violation of the time limits is a matter for the national court and not for the Court of Justice”. I agree that this is a legitimate inference to draw from the reasoning deployed in paragraph [16]. The reasoning is neutral on the issue that I have to decide. There is no underlying assumption that the national court was not bound to apply the time limit if it concluded that the appeal was out of time.[48]The next case is the first of the English decisions, TSN Kunstoffrecycling v Jurgens (unreported, 16 February 2001), (“TSN”) which was concerned with the enforcement in England of a default judgment entered in Germany against a Dutch national resident (and presumably domiciled) in England. The defendant had appealed against the registration of the German judgment on the same grounds that Mrs Christofi wishes to raise in the present case, namely, that it was entered in default of appearance in circumstances in which he was not duly served with the proceedings and had insufficient time to arrange for his defence. He made an application to the court appealing against the enforcement order within a month of service on him of the enforcement order. However in consequence of the provision of wrong information by the court to his solicitors, the wrong fee was enclosed, and the stamping and issue of the application was delayed until after the correct fee was sent. By then the 30 days for appealing had expired (this must have been a category A1 case, because if the defendant had still been domiciled in the Netherlands, the time limit would have been two months). The respondent opportunistically argued that the appeal was out of time and there was no power to extend the time limit. No point was taken in relation to the timing of service of the appellant’s notice.[49]Jack J. held that on the true construction of the applicable domestic procedural rules, the application was made within time, because the application notice had been received by the court within the deadline (CPR 23.5), so the payment of the wrong fee was irrelevant. However, he went on to observe, obiter, at [17] that if the eventual date of issue of the application was the relevant date, the appellant would have been in some difficulty. He referred to Hoffman and said that whilst the court in that case was not directly concerned with the question whether time could be extended by a national court under its own procedures, the statement in paragraph [31] of that judgment (which I have quoted above) is in clear terms. It appeared consistent with the principle of exclusion of national law as a way of surmounting the provisions of Article 36 of the Brussels Convention (citing Brasserie du Pecheur) and was also supported by the Jenard Report. He said that the argument that, because the Article expressly precludes an extension of time on account of distance, it allows by implication extensions for other reasons in accordance with national law, would seem a bad one. If his “tentative view” was right, there is no power to grant such an extension.[50]The case went on appeal on a different point to the Court of Appeal [2002] 1 WLR 2459, which upheld Jack J but said nothing of any relevance to the issues I have to determine. The reasoning in TSN which led to Jack J’s “tentative view” is consistent with the reasoning that I have deployed above.[51]The case on which Mr Warents understandably placed most reliance, Citibank v Rafidian Bank and another [2003] EWHC 1950 (QB) (“Citibank”) was a category A2 case involving an Iraqi Bank adversely affected by the sanctions imposed after the invasion of Kuwait on 2 August 1990. The English court had granted an order for the enforcement of a judgment of the court of Amsterdam relating to a debt falling due under a letter of credit. The enforcement order was served on 21 March 2002 and the two months for appealing expired on 21 May that year, but the appellant took no steps to seek an extension of time for appealing until 13 June 2003. The application was refused by the single judge on paper, on the basis that there was no jurisdiction to grant the extension of time. The appellant renewed the application to an oral hearing before Tugendhat J. who decided that there was a power under CPR 74.8(3) to extend time otherwise than on account of distance, even if the application was made after the time for compliance had expired, but declined to exercise it.[52]Despite the fact that the appellant and the respondent were each represented by distinguished leading counsel from the Commercial Bar, none of the earlier authorities to which I have referred was cited to the judge. The respondent’s counsel appears to have confined himself to citing the commentary in the notes in the White Book, which admittedly make some reference to the underlying policy of avoiding derogation from the Convention’s object of establishing a simple and rapid machinery for the enforcement of judgments of other Member States (see the judgment at [19]).[53]No criticism is to be attached to counsel for the failure to cite TSN, which was (and is) unreported; in 2003 such judgments were by no means as easy to find as they are today. Moreover, Jack J’s view was obiter and, as he himself characterised it, “tentative”; the subsequent decision of Tugendhat J could not be regarded as per incuriam because it did not pay regard to it. The failure to find and cite the European decisions, particularly Hoffman, is a little more difficult to explain, but in the context of an argument relating to a case falling within CPR 74.8 (3) is perhaps understandable, because that rule expressly provides that there is a power to extend time in a case where the judgment debtor is domiciled outside the EU, at least if the application is made within two months of service of the registration order. Thus the issue before the court was the relatively narrow one of whether that power could be exercised if it were invoked after the two months had expired, or, to put it another way, whether the time for making the application could be extended under CPR 3.1(2)(a) or whether the Brussels Convention “otherwise provided”.[54]The judge was alive to the fact that three classes of potential appellant are identified in CPR 74.8, (and its predecessor under the RSC,) but only two classes are specifically referred to in Article 36 of the Brussels Convention. At [22] he rightly treated persons domiciled outside the EU as being subject to the one month time limit, and said it was not clear why they should have less than two months – an observation with which I respectfully agree. He then said that if the Convention were to be construed so strictly that the national rules governing procedure permitted no extension of time to be granted after the two month period granted by Part 74.8(3), it would also be for consideration whether Part 74.8(3) were not itself outside what is authorised by Article 36. Indeed, Article 36 does not contemplate that such parties should have two months in the first place.[55]Were it not for the Jenard Report, that would be fair comment; but the Jenard Report (to which the judge appears not to have been referred) makes it clear that Article 36 is to be interpreted as permitting the one month period to be extended on grounds of distance, albeit only in a Category A2 case – i.e. the only situation not already expressly catered for in which distance might pose a practical impediment to appealing within a month. Jenard is silent as to how long such an extension might be, but there could be no complaint about a rule or law permitting an appeal to be brought within two months to bring Category A2 defendants into line with defendants domiciled elsewhere in the EU. That two month period for appealing is both fair and compatible with Article 6 ECHR, as Tugendhat J rightly went on to find (at [47)].[56]However, Jenard does not go so far as to contemplate an extension of time, let alone an extension beyond two months, on any other grounds, and thus the point made by Tugendhat J about the compatibility of CPR 74.8(3) with the Convention and the Judgments Regulation merits further examination. If there were a general power to extend time for making the application even after the two months granted to a Category A2 defendant had expired, there would be little or no point in the Rules Committee expressly stipulating that the application must be made before the two months has expired, a point made forcefully by Ms Lamont. Moreover, an unfettered power to extend time in a Category A2 case, especially one exercisable after the time limit had expired, would undermine the integrity of the scheme of the Convention and Judgments Regulation for the reasons I have already given.[57]As I have already observed, the power of the State of enforcement to extend the one month time limit on grounds of distance that Jenard accepts to exist in a Category A2 case has already been exercised in this jurisdiction by making provision for a two month time limit for appeal in CPR 74.8(4)(a)(ii). However, that provision does not specify that the two months runs from personal service or service at the defendant’s place of residence (indeed, that requirement has to be read into the rules in the case of an EU domiciliary). Nor does it draw any distinction between EU and non-EU domiciliaries. It is CPR 74.8(3) which caters specifically for persons falling within Category A2. So, are there any grounds compatible with the policy underlying the Judgments Regulation on which an extension of the two month period could be granted to non-EU domiciliaries other than distance?[58]The key to answering this question may lie in the recognition underpinning the first of the Category B modifications that domestic rules of service can operate in such a way as to deprive someone outside the jurisdiction of, or unfairly impair his right of appeal. The policy behind the requirement of actual service on an EU domiciliary, in person or at his residence, before time for appealing can start to run against him, is clearly spelled out by Jenard. It is to protect the defendant and to prevent his being deprived of a remedy because he had not been informed of the decision in sufficient time to contest it. Jenard does not expressly address the disadvantages that domestic rules of service may have for a non-EU domiciliary, but they are obviously the same as for someone domiciled in another Contracting State. Such a person cannot be said to have accepted any potential disadvantages caused by domestic procedural rules of service by choosing to make his home permanently in the State of enforcement.[59]Suppose that a non-EU domiciliary does not in fact have the sufficient time in which to appeal envisaged by the Regulation, because despite being deemed served under the procedural rules of the State of enforcement, he is unaware of the enforcement order. It must be at least arguable that an extension of time may be granted to him by that State without violating the policy underlying the Judgments Regulation, at least if the extension of time does no more than put him on the same footing as someone domiciled in another EU State by allowing him two months from the date of actual service of the enforcement order on him in person or at his residence. The same process of reasoning might also justify extending time so as to allow two months from the date on which he was actually notified of the order. In principle there seems to me to be no reason to justify Category A2 defendants, who may be domiciled as far away as Australia, being treated less advantageously than someone domiciled in another part of the EU.[60]Therefore, the provision in CPR 74.8(3) for an extension of time in a Category A2 case for reasons other than distance may have been designed to enable the court to put the non-EU domiciled defendant on the same footing as an EU defendant in circumstances in which he was deemed to have been duly served, but was not informed of the enforcement order in sufficient time to contest it. If that analysis is correct, and the Regulation is to be interpreted as allowing the State of enforcement to equate the position of all parties domiciled outside its jurisdiction for the purpose of appealing, then there is a powerful argument that in principle there is no reason to compel the appellant to seek the extension of time within two months of service, because that time limit might itself operate unfairly if the manner of service did not bring the enforcement order to his attention until after it had expired.[61]It is arguable on the basis of the reasoning deployed by the CJEU in Verdoliva v JM Van der Hoevan, discussed in paragraphs 65-70 below, that because the Regulation does not stipulate the means of service in a non-EU case, certainty requires that in such a case the period for appealing must start to run from the date of due service under domestic rules, and the date when the defendant finds out about the enforcement order is irrelevant. Therefore there is no power to grant any further extension of time, and CPR 74.8(3) does indeed go beyond what is permissible. Whilst I acknowledge the force of that argument, Jenard acknowledges that the Regulation does distinguish between persons domiciled in the State of enforcement and those domiciled elsewhere, and it does so for good reason. The power to extend time is confined to Category A2 cases, and it seems to me that in principle the envisaged power to ameliorate the harshness of the one month limit in such a case must be exercised in a way that is compatible with the underlying policy that led to the express concessions given in the Convention and the Judgments Regulation to persons domiciled elsewhere in the EU.[62]I would therefore favour an interpretation of the Regulation which allowed the State of Enforcement to modify its domestic procedural rules to prevent a non-EU defendant from being deprived of a remedy because he had not been informed of the enforcement decision in sufficient time to contest it within the one month, or in the case of this jurisdiction two months, lawfully provided for. However it seems unlikely that the power could be legitimately exercised in a manner which went beyond the concessions expressly made in the Regulation itself to persons domiciled in other Contracting States (subject only to the caveat in paragraph 41 above, which applies to all defendants irrespective of where they are domiciled).[63]Had Tugendhat J been shown Hoffman and the Jenard report, and addressed on the need to strike a balance between maintaining a uniform procedure for rapid enforcement and ensuring that the defendant is given a fair opportunity to appeal (which depends on his having knowledge of the enforcement order and sufficient time to initiate the appeal procedure) he may have reached a different conclusion. However he could still have reached the conclusion that he did on the specific issue that he had to decide, by deploying slightly different reasoning. It is unnecessary for the purposes of this appeal for me to decide whether Tugendhat J’s conclusion in Citibank was right, since this case is not concerned with a Category A2 situation or with the interpretation and effect of CPR 78.4(3). What does seem clear to me is that the issue before Tugendhat J was confined to the ambit of that procedural rule and whether the terms of the Convention compelled the conclusion that applications for a further extension of time could only be brought within the period allowed for appealing against the enforcement order.[64]Whatever the scope of the residual power to extend time in a Category A2 case, Citibank is not authority for the proposition that the time limits imposed by the Convention and the Judgments Regulation in Category A1 and Category B cases are not mandatory. It was not necessary for Tugendhat J to make such a finding in order to decide the narrow issue in the case. However, if and to the extent that Tugendhat J’s finding at [23] that Article 36 of the Convention does permit an extension of time to be granted otherwise than on account of distance is to be read as extending to cases outside Category A2, he was clearly wrong.[65]Case C-3/05, Verdoliva v JM Van der Hoevan, (“Verdoliva”) was decided by the CJEU on 16 February 2006. The issue in that case was whether the time for appealing against an order for enforcement in a Category 1A case ran from the date of due service under domestic rules, or the date on which the prospective appellant was notified of the existence of the enforcement order. The Court ruled firmly in favour of the former.[66]The judgment creditor obtained a judgment in the Netherlands which he sought to enforce in Italy, which was the defendant’s place of domicile. An initial attempt to serve the enforcement order at the defendant’s place of residence in Italy was unsuccessful because he had moved. Under Italian procedure, in those circumstances service can be duly effected by lodging a copy in the town hall of the defendant’s last place of residence, and by the bailiff attaching another copy to the notice board there. Mr Verdoliva sought to appeal after the one month prescribed for appealing had expired. He contended that service was ineffective, because he had not been personally served and the order had not been lodged at the town hall. The Italian court held that the appeal was nonetheless time-barred because it was brought more than 30 days after he had been served with a document notifying him of the existence of the enforcement order.[67]The CJEU held that because Article 36 of the Brussels Convention does not include any express condition for validity of service save where the party against whom enforcement is sought is domiciled in another Contracting State, its provisions must be interpreted in the light of the scheme and aims of that Convention. After referring to the aims of the Convention and to the fact that it is not permissible to achieve them by undermining the right to a fair hearing, the Court referred to the time limit of one or two months for appealing depending on whether the appellant is domiciled in the Contracting State in which the decision authorising enforcement was given. It said (at [32]):
“That time limit is of a strict and mandatory nature (Case 145/86 Hoffmann [1988] ECR 645, paragraphs 30 and 31).”
It then referred to the fact that, by contrast, the Convention imposes no time-limit on an appeal by the party who has been refused enforcement.[68]In considering whether the mere fact that the prospective appellant has notice of the decision will suffice in a case where service is defective, the CJEU acknowledged that the requirement that the decision authorising enforcement be served has the dual function of protecting the rights of the party against whom enforcement is sought and allowing, in terms of evidence, the strict and mandatory time-limit for appealing to be calculated precisely. It said that double function, coupled with the aim of simplification of the formalities to which enforcement of judicial decisions delivered in other Contracting States is subject, explains why the Convention makes transmission of the decision authorising enforcement to the party against whom enforcement is sought subject to procedural requirements that are more stringent than those applicable to transmission of that same decision to the applicant ([34]-[35]). If the sole issue were whether the enforcement order had come to the attention of the other party, it would render the requirement of due service meaningless [35]. Moreover it would make the exact calculation of the time limit under Article 36 more difficult, thus thwarting the uniform application of the provisions of the Convention [36].[69]Thus the court concluded that Article 36 was to be interpreted as requiring due service of the decision authorising enforcement in accordance with the procedural rules of the Contracting State in which enforcement is sought. It is clear that the court envisaged that in a Category A1 case, this could include some form of substituted service of the kind provided for in Italy, rather than personal service or service at the party’s place of residence. As in Van den Boogaard, the CJEU left it to the national court to decide whether in fact there had been compliance with the domestic rules of procedure.[70]The whole rationale of that decision depends on the time limit for appealing being strict and mandatory, as the CJEU said in terms that it was, endorsing the approach in Hoffman. That was the reason why it was so important that the starting point for time to run was clearly defined, and that the same rule should be applied consistently throughout the EU. In my judgment Verdoliva provides strong support for the proposition that there is no general power to extend time – because if such a power existed, the ability to calculate the period with precision would not assume such fundamental importance.[71]That view was shared by Slade J in Taylor-Carr v Howkins & Harrison LLP [2014] EWHC 3479 (QB) (“Taylor-Carr”). That case concerned a French judgment for fees said to be owing to the respondent, a firm of estate agents. Again it was a category A1 case, with a one-month time limit, as the appellant, Mrs Taylor-Carr, was domiciled in England. The appellant was served with the enforcement order on 10 June 2013 but the appeal was only issued on 17 February 2014, some eight months out of time. Mrs Taylor-Carr was unrepresented. Counsel for the respondent very properly referred the judge to all the authorities that I have considered thus far, apart from Van den Boogaard, though he does not appear to have specifically addressed the Jenard Report.[72]In an ex tempore judgment that is both clear and concise, Slade J. decided that the approach of Hoffman, Verdoliva and TSN to the question of whether there is a discretion to extend time for an appeal was to be preferred to that of Tugendhat J. in Citibank. She said at [25] that whilst Hoffmann and Verdoliva were not directly on point they clearly emphasised the mandatory nature of the time limit provisions; and that she preferred Jack J’s approach and his view expressed tentatively that there is no power to grant an extension of time.[73]Mr Warents submitted that Slade J provides no in-depth analysis or explanation for her failure to follow Tugendhat J’s decision, which convention required her to follow unless she was persuaded it was “clearly wrong”. He also submitted that I should follow the earlier decision in Citibank, as it was based on full legal argument from leading counsel and it was a reserved judgment. It does not follow from those features that the reasoning in that case should be preferred, especially as the judge was not taken to all the relevant authorities. Slade J had the advantage in that respect, though she did not have the advantage that I have had of hearing counsel arguing the case on each side. However, as I have already said, on proper analysis the decision in Citibank is not necessarily out of line, as it is only what is said at [23] that is potentially in conflict with the rationale in other authorities, and even then, only if it is interpreted as extending beyond a Category A2 case and confirming the existence of a general power under the Convention or the Regulation to extend time for appealing other than on grounds of distance. Verdoliva, which was decided subsequently to Citibank, and by a higher court, the CJEU, is inconsistent with the existence of such a power, as is Hoffmann.[74]There is no authority directly addressing the issue in a Category B case; however the overwhelming majority of the cases (including Hoffman, which is a Category B case) support the initial view that I took on the construction of the Regulation alone, with the assistance of the Jenard Report, bearing in mind the underlying policy considerations. A general discretion to extend time for appealing would subvert that policy, introducing uncertainty as well as departing from the intention of creating a uniform and self-contained system of speedy and simple enforcement throughout the EU. The time limits were designed to strike the necessary balance between effective and speedy enforcement and protection of the legitimate rights and interests of the defendant.[75]Category B defendants such as Mrs Christofi have the double protection of a requirement of actual service before time starts to run, and twice the normal time for bringing their appeal; and those safeguards are deemed sufficient. Category A1 defendants do not generally need those safeguards but, as the CJEU makes clear in Verdoliva, they are entitled to insist on due service in accordance with the procedural law of their state of domicile which is also the State of enforcement, and time for appealing will only start running once they are duly served, irrespective of their state of knowledge. It appears to have been left to the Member States to decide whether (and if so, how) to put Category A2 defendants on exactly the same footing as Category B defendants. Whether our domestic procedural rules have gone further in that regard than is permissible by the Judgments Regulation, or whether they should be interpreted more restrictively in line with its policy, are matters for another day.[76]The answer to the first question is therefore that there is no general power to extend the mandatory two month time limit for appealing in this case. The Court is obliged to enforce that time limit strictly, subject only to the residual power to extend a mandatory time limit in the rare case where its application would impair the very essence of the right of appeal, and strict adherence to it would infringe Article 6 ECHR.[77]The domestic case law on relief from sanctions, most notably Denton v TH White [2014] 1 WLR 3926, does not directly address failure to comply with a time limit prescribed by a statute or by a directly applicable EU regulation which has the same effect as a statute. I am not persuaded that the guidance given in cases concerning non-compliance with a court order or procedural direction or with the rules of court pertaining to domestic litigation, including appeals, is wholly apposite in this context, though of course it is of some relevance. The underlying policy considerations in a case such as this, to which I have already referred, go well beyond those affecting decisions on matters of pure case management.[78]In the present case, the failure to meet the time limit was serious; this is plain when one places the delay of around three weeks in the context of a two month time limit which is twice the time allowed to a party domiciled within the jurisdiction and which is regarded, as a matter of policy, as being sufficient to safeguard the legitimate interests of a party domiciled elsewhere in the EU. The period for appealing is deliberately short. Whilst the delay was nothing like as long as it was in Taylor-Carr or Citibank, it cannot be described as minor.[79]Mr Warents contended that the delay has had no practical impact on the execution of the judgment, because the Bank had agreed that the hearing of its application for the charging orders to be made final would not take place until after 30 October 2014, and the consent order provided that the Court would not be informed whether or not an appeal had been lodged until 30 September at the earliest. There was no evidence that the 22 days’ delay in appealing would have had any impact upon the listing of the hearing to make the charging orders final, let alone that it would be delayed by three weeks.[80]That may well be right. However, if the appeal had been brought within time, the hearing of the appeal may have been listed earlier than 26 March. Even if it could not have been listed earlier, there would have been no necessity to deal with these preliminary issues, with the substantive appeal being adjourned to a later date pending the outcome of any appeal against my decision, an inevitable concomitant of the appeal being out of time. All of this delay is bound to have a knock-on (and adverse) effect on the Bank’s ability to enforce its judgment and is directly contrary to the policy underlying the Judgments Regulation. It is nothing to the point, though it affords the Bank some comfort, that in the meantime its position is protected to some extent by having security in the form of the interim charging orders over Mrs Christofi’s English properties.[81]In any event, as the Court of Appeal made clear in Denton v White at [26], the seriousness of a breach or failure to comply with an order or rule of court is not to be determined exclusively by its impact on the efficient progress of litigation (or, by analogy, on the expeditious enforcement of an EU judgment). The requirement is that the delay is serious or significant (or both). I regard the delay as serious whether or not it was significant in the sense of making a material difference to the date on which the Bank would have had its hearing of the application for final charging orders over the property, or the date on which the appeal was listed for hearing.[82]There was no good reason for the delay, as Mr Warents realistically accepted, though he submitted that the muddle by Fletcher Day was a relevant factor at the third stage of the analysis when looking at all the circumstances and determining whether it was fair to grant the extension of time. The Bank’s opposition to the application for an extension of time cannot be characterised as opportunistic; this was no technical slip, and no blame can be attached to the Bank or its legal representatives for what happened. If Mrs Christofi’s solicitors thought they had until 30 September to file the appeal that still does not explain why they apparently left matters until the very last minute.[83]Although the seriousness of the delay and the absence of any excuse for it both militate strongly against the grant of relief, the Court may nevertheless exercise a discretion in favour of an extension of time if in all the circumstances the justice of the case requires it. The merits of the underlying appeal are irrelevant to that consideration, because this is not a case in which they are sufficiently clear to justify their being taken into account. So, would the justice of the case require an extension of time for appeal if I had the power to grant it?[84]Mr Warents relied upon R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, in which the parties had agreed to an order adjourning the application for permission to appeal (which was later granted) without also seeking an extension of time for filing the appellant’s notice, as they should have done. Relief was granted despite a similar period of around 3 weeks’ delay, for which there was no good reason, chiefly on the basis that the delay had no significant effect on the proceedings [51]. It was also found to be of “critical importance” that the respondent had suffered no prejudice (see [53]). However, the exercise of judicial discretion in a given case is highly fact-sensitive. Hysaj was a case in which the point raised on the appeal was one of considerable importance not only to the parties but to the wider public, permission to appeal had been granted, and where it was clear that the respondent was labouring under the same misunderstanding as to the effect of the agreed order for an adjournment as the appellant. That was not the case here; and unlike Hysaj, this was not a case in which there was an understandable but inexcusable oversight or misapprehension as to what the rules required, but a case in which Mrs Christofi’s solicitors were not only aware of the two month limit for appealing, but initially proposed a consent order premised on the correct assumption that time ran out on 11 September 2014.[85]Hysaj was also a case concerning the normal rules pertaining to appeals from first instance decisions to the Court of Appeal. There was no background of a complex and supposedly self-contained international Treaty or directly effective European regulation with the policy of simple, expeditious recognition and enforcement of judgments of other Contracting States at its heart, a deliberately tight timetable set for appeals on very restricted grounds, and a regime that was designed to strike a fair balance between the rights of the judgment creditor and protection of the legitimate interests of the defendant. Viewed in that context, there is no obvious justification for condoning a three week delay by someone who knows of the existence of the Enforcement order in ample time to appeal. Indeed, given that the balance between the competing interests is already fairly struck by the terms of the Judgments Regulation itself, in my judgment any interference by the Court with that balance in circumstances such as this would be unwarranted and unprincipled. It is not good enough to say “there was no harm done” because, even if that were true (which it is not) it loses sight of the bigger picture.[86]For those reasons, even if I had a discretion to extend the time for appealing, I would decline to exercise it in favour of Mrs Christofi. The second preliminary issue must also be answered in the negative. It follows that the application for an extension of time must be dismissed. Postscript In the light of the provisions of CPR 52.13 it is debatable whether I have power to grant permission to appeal against this judgment, even though this is not a typical “second appeal” situation because the original order was made “without notice,” and the only inter parties contested hearing has been the hearing before me. I understand that Mr Warents has taken the pragmatic view that he should apply to the Court of Appeal for permission to appeal. I would unhesitatingly have granted permission to appeal had I the power to do so. Despite the fact that I would have exercised my discretion against Mrs Christofi if I had the discretion to extend time, I consider that there is an important point of principle or practice involved in this case. Moreover, although I have sought to reconcile the decision in Citibank, on the one hand, with the tentative view expressed by Jack J in TSN and the decision of Slade J in Taylor-Carr on the other, it is at least arguable that the reasoning in those decisions is in conflict. Indeed the question whether CPR 52.13 applies in this specific context is in itself an important point of practice that has not yet been decided.

Cited in 1 later judgment