Christofi v National Bank of Greece (Cyprus) Limited

LORD JUSTICE GROSS: This is a renewed application for permission to appeal on behalf of Mrs Christofi, to whom I shall refer as "the applicant".

I am most grateful to Mr Warents, who appeared today, for both his comprehensive skeleton argument and his oral submissions this morning. I should make it clear that I have also taken very careful account of the respondent's statement, which helpfully focused on the central issues and on the letter from the respondent's solicitors of 1st March which was put before me this morning. It is not entirely clear that this is indeed a second appeal, strictly so-called, within CPR 52.13. However, I proceed on the basis that it is and that the test there contained must be satisfied.

The applicant seeks permission to appeal from the full and careful judgment of Andrews J in this matter dated 14th April, 2015.

The first question which arises is the judge’s ruling that she did not have jurisdiction to grant an extension of time for the applicant's appeal against the registration of the settlement order. In reaching that conclusion, Andrews J expressed her view as to the true construction of Article 43 of the Judgments Regulation.

There is plainly scope for a different view to be taken on the question of jurisdiction, involving the proper interpretation of Article 43.5. In saying that, I mean no disrespect whatever to the judge; she herself properly and clearly recognised this to be the case. Subject to one point, the issue is also one which plainly raises, as the judge herself went out of her way to emphasise, an important point of principle or practice. The application in respect of this question thus, as I say subject to one point, plainly satisfies the relevant tests both in CPR 52.3(6) (real prospect of success) and 52.13.(2)(a) (important point of principle or practice).

The one outstanding point is whether the fact that there is now a new Regulation - with a different regime - means that the importance of the point has disappeared and therefore it should fall outside of CPR 52.13(2)(a).

It is fair to the respondent to recognise that the importance of the point is diminishing over time, but, as it seems to me, sufficient existing judgments may yet fall under the Regulation considered by the judge so as amply to justify my conclusion in respect of 52.13(2)(a).

I turn to the second question, as to whether the judge erred in the exercise of her discretion. The judge concluded that even if she had jurisdiction to grant an extension of time, contrary to her view of Article 43.5 of the Regulation, she would not exercise her discretion to do so.

In terms of CPR 52.13, although this is a separate question and very largely turning on the facts of this case, nonetheless on the facts here I treat it as ancillary to the question of jurisdiction. It is wrapped up, to use the phrase employed by Mr Warents, with the first issue of jurisdiction. Thus, as it seems to me, there is a sufficient case for it satisfying the CPR 52.13 test - I emphasise, on the facts of this case. Even so, is there a real prospect of success in overturning the judge's exercise of discretion?

On balance, I am persuaded that, if only just, that there is such a prospect, essentially in terms of (i) the significance, or lack of significance, of the delay and (ii) all the circumstances of the case. At all events, I do not think it right to shut out the applicant on this ground.

I therefore grant permission to appeal. Permission goes to the two points canvassed before me: (i) jurisdiction and (ii) discretion, and inevitably that will raise the question of costs.

Next, Mr Warents seeks a stay relying essentially on CPR 74.9, as it stood. Having regard to the scheme of the Regulation as a whole, not least the interests of expedition, I am not persuaded that that is a justified approach. The usual approach is that an appeal does not bring with it a stay unless justified by the interests of justice, and, despite Mr Warents' efforts, I reject the application for a stay subject to only one relatively straightforward proviso. The proviso is this. Should the bank sell the properties in this country, or one of them, the proceeds must be kept within this jurisdiction in an escrow account, or some similar arrangement, pending the outcome of the appeal.

So as to concentrate the bank's mind, it will be necessary to bring to me an agreement showing the arrangements made for the proceeds should there be such a sale and, if there is no such agreement, then I would obviously entertain further argument on the question of a stay. That said, that is not an encouragement to the applicant to resist agreement. I would obviously look critically at any failure to reach what should be a simple understanding and deal with the proceeds should there be a sale. In this fashion both parties can be protected from the vagaries of the market at the time.

I will trouble Mr Warents to draw up a simple provision to reflect the sense of what I have just said. I will need to approve the agreement. I should certainly make it clear that I shall not look with favour on either party should they seek to resist entering into that agreement.

Finally, Mr Warents, on paper, but prudently not orally, raised the question of a reference to the Court of Justice of the European Communities. I am unimpressed. If the applicant wishes to renew that point she can seek to do so before the court hearing the appeal. My ruling today is to permit the applicant an opportunity to appeal, which seems right to me; it is not to promote open-ended delay. The applicant and her advisers will do well to keep that in mind.