|
This article covers the
procedure to be followed in enforcing a foreign judgment in the UK,
and the problems and pitfalls facing a judgment creditor in, say,
the Oram Case. The Oram case is used merely as an example.
In the Oram case, it is generally accepted that the judgment
obtained by the claimant is worthless unless it can be enforced
against the assets of the Orams in the UK.
As the judgment
was obtained in the Republic of Cyprus, a member of the EU, the
claimant would seek to rely on Council Regulation (EC) No. 44/2001
Article 38.2, which provides:
“ in the UK a (foreign)
judgment shall be enforced in England and Wales, in Scotland or in
Northern Ireland when, on the application of any interested party,
it has been registered for enforcement in that part of the UK.”
The procedure for enforcement of foreign judgments obtained
in EU countries is set out in the Civil Jurisdiction and Judgments
Act 1982 (as amended) (“CJJA”)
Under the CJJA the foreign
judgment must be registered at the Central Office of the High Court
in London. Application must be made without notice (ie. without
informing the other party) to a Master in the High Court.
Once a Master has made an Order for registration, the
judgment will be registered at the Central Office and a Notice of
Registration drawn up. The Notice must be personally served upon or
delivered to the last known address of the party against whom the
judgment was made. It must state the particulars of the judgment,
the names and addresses of the relevant parties and the right of
appeal against the registration and the period during which an
appeal against registration can be made. This period will be one
month from the date of service of the Notice unless the party to be
served is not domiciled within the jurisdiction, in which case the
period is extended to two months.
This is the time when a
judgment debtor (eg. The Orams) must act, by filing Notice of
Appeal. The grounds of appeal would be that the judgment (which the
judgment creditor is seeking to enforce) is manifestly contrary to
public policy in the UK. See Council Regulation (EC) No. 44/2001
Article 34 which provides:
“ that a judgment shall not be
recognised if such recognition is manifestly contrary to public
policy in the Member State in which recognition is sought (Article
34.1)”.
In English law it is accepted as being contrary to
public policy to recognize a judgment which would not be valid in
the country where the events giving rise to that judgment occurred.
In English Law public policy adopts the general rule that
the law to be used for determining issues relating to tort is the
law of the country in which the events constituting the tort
occurred; see sections 9(i) and 11(i) of the Private International
Law (Miscellaneous Provisions) Act 1995.
The issues to be
determined on appeal would be:
(i) that Northern Cyprus is a
separate country with its own established laws and system of
government (the TRNC)
(ii) that the events occurred in
Northern Cyprus (the TRNC)
(iii) that the facts complained
of (resulting in the judgment) would not give rise to a cause of
action in the TRNC
Clearly, the major issue is the status of
the TRNC.
Turkey and the Republic of Cyprus are both members
of the UN. Article 2(4) of the United Nations Charter provides that
in their international relations all members shall refrain from the
use of force against the territorial integrity of any state. This is
also a principle of customary international law binding on states.
Further, Article 25 of the UN Charter provides that the
members of the UN agree to accept and carry out the decisions of the
Security Council in accordance with the Charter. Chapter VII of the
Charter empowers the Security Council to determine that there exists
a breach of the peace. The Council may decide upon measures to
restore international peace and security. Decisions of the Security
Council taken under Chapter VII powers are legally binding upon all
members of the United Nations.
The United Nations, by
resolutions of the Security Council, does not recognize the TRNC.
Accordingly, the UK Government does not recognize the TRNC.
This is not to say an English Court is disabled from ever
taking cognisance of international law or from ever considering
whether a violation of international law has occurred. In
appropriate circumstances it is legitimate for an English Court to
have regard to the content of international law in deciding whether
to recognize a foreign law.
Lying at the heart of the
present question (whether a Republic of Cyprus order will be given
effect by English Courts) – and of the general question of the
correct attitude in law to be taken to the orders of courts
exercising “de facto power” without “de jure authority” – is the
passage in Lord Wilberforce’s speech in Carl Zeiss Stiftung v.
Rayner & Keeler Ltd. (No2)[1967] AC 853 at page 954 C-E where he
famously said:
“In the United States some glimmerings can be
found of the idea that non-recognition cannot be pressed to its
ultimate logical limit, and that where private rights, or acts of
everyday occurrence, or perfunctory acts of administration are
concerned (the scope of these exceptions has never been precisely
defined) the courts may, in the interests of justice and common
sense, where no consideration of public policy to the contrary has
to prevail, give recognition to actual facts or realities found to
exist in the territory in question.”
What Lord Wilberforce
contemplated was recognition of particular acts of governments
recognized neither “de jure” nor “de facto”. Decisions relating to
private rights, given by courts established by rebellious or
usurping governments, are plainly within this concept.
Lord
Wilberforce’s statement supports the view that, with the proper
safeguards in place and in appropriate circumstances, there is no
reason to be less willing to give effect to the orders of
non-recognized foreign governments.
Such view also finds
support in Grotius’s statement in “De Jure Belli ac Pacis”, Book 1,
Chapter IV, Section XV that:
“We have spoken of him who
possesses, or has possessed, the right of governing. It remains to
speak of the usurper of power, not after he has acquired a right
through long possession or contract, but while the basis of
possession remains unlawful. Now while such a usurper is in
possession, the acts of government which he performs may have a
binding force, arising not from a right possessed by him, for no
such right exists, but from the fact that one to whom the
sovereignty actually belongs, whether people, king, or senate, would
prefer that measures promulgated by him should meanwhile have the
force of law, in order to avoid the utter confusion which would
result from the subversion of laws and suppression of the courts”.
No useful purpose would be served by referring to all the
cases in which Lord Wilberforce’s statement in Carl Zeiss (No. 2)
has been cited – never with disapproval.
But it is
worthwhile quoting what Scarman LJ said in Re James [1977] Ch.42 and
what Sir John Donaldson MR said in Gur Corp. v. Trust Bank of Africa
Ltd. [1987] 1QB 599. In Re James – a bankruptcy case in the context
of Southern Rhodesia’s 1965 unilateral declaration of independence –
Scarman LJ said this (at page 70G):
“I do think that in an
appropriate case our courts will recognize the validity of judicial
acts, even though they may be the acts of a judge not lawfully
appointed or derive their authority from an unlawful government.”
|
In Gur Corp. v. Trust Bank of
Africa Ltd. – which involved the question of whether the Republic of
Ciskei had standing to sue or be sued – Sir John Donaldson MR said
this (at page 622 D-F):
“Lord Wilberforce, at page 954,
reserved for further consideration whether the non-recognition of a
government or, I think, a state, would necessarily lead to the
English Courts treating all its legislative activities as being a
nullity or whether, in the interests of justice and common sense,
where no consideration of public policy to the contrary has to
prevail, it might not be possible to take cognizance of the actual
facts or realities found to exist in the territory in question and
he instanced private rights, or acts of everyday occurrence or
perfunctory acts of administration. I see great force in this
reservation, since it is one thing to treat a state or government as
being “without the law”, but quite another to treat the inhabitants
of its territory as ‘outlaws’ who cannot effectively marry, beget
legitimate children, purchase goods on credit or undertake countless
day-to-day activities having legal consequences.”
Furthermore, in Hesperides Hotels Ltd. v. Aegean Turkish
Holidays Ltd. [1978] 1QB 205 – a case relating to the seizure of
hotels in North Cyprus by the government of the Turkish Federated
State of Cyprus (forerunner of the TRNC) – no such government or
state was recognized “de jure” or “de facto” by the United Kingdom
government. After reviewing various authorities Lord Denning MR said
this (at page 218):
“If it were necessary to make a choice
between these two conflicting doctrines, I would unhesitatingly hold
that the courts of this country can recognize the laws or acts of a
body which is in effective control of a territory even though it has
not been recognized by Her Majesty’s Government de jure or de facto:
at any rate, in regard to the laws which regulate the day-to-day
affairs of the people, such as their marriages, their divorces,
their leases, their occupations, and so forth: and furthermore that
the courts can receive evidence of the state of affairs so as to see
whether the body is in effective control or not.”
This case
was decided on grounds not relevant to Lord Denning’s comments, but
no criticism of his comments has been reported.
All of these
statements, including Lord Wilberforce’s, are, admittedly, “obiter”
(ie. not central to the matter in issue) but they constitute “dicta”
(judicial opinion) of the most carefully considered kind, and are
wholly persuasive in favour of the argument for the recognition of
the TRNC.
The case of Emin v. Yeltag [2002] 1FLR 956 has
been reported as a breakthrough in showing that the UK courts now
recognize the TRNC as a country. Unfortunately that is not so,
because the Learned Judge deliberately stopped short of making such
a finding.
The issue before the court was whether the fact
that the British Government did not recognize the TRNC affected the
validity of a divorce decree granted by the TRNC. The Attorney
General and the Secretary of State for Foreign and Commonwealth
Affairs on behalf of the present British Government intervened in
the case and submitted that the English Courts should respect the
acts of the TRNC authorities in relation to private rights. After
reviewing all the above authorities Mr. Justice Sumner concluded:
“That recognition is possible because the Republic of Cyprus
is one country but with 2 territories, each with their own legal
system”.
However, this judgment must be treated cautiously,
as the learned judge went on to emphasise that his decision was
limited only to the recognition of the TRNC divorce decree (as a
private right) by saying:
“But the validity given to such
decisions of a court of an unrecognized state must however be
limited in scope. It must never be inconsistent with the foreign
policy or diplomatic stance of the United Kingdom Government”.
His decision was based on the fact that he was able to find
that the particular English law in question applied to both
territories and countries. Accordingly he was able to decline to
follow the argument that the TRNC was a country, as opposed to being
merely a territory (albeit with its own laws) saying:
“It
can be seen immediately that given the history and present
administration of the TRNC, there is an argument that, if it is not
a territory, it is a country. However to make that finding might
well lead to the court acting inconsistently with the foreign policy
of the United Kingdom. I therefore decline to follow that argument.”
He did not determine whether the TRNC was or was not a
country, simply because he was not required to do so. In submitting
their arguments the Attorney General and the Foreign Secretary
reminded the Court that the diplomatic stance of the UK Government
was not to recognize the TRNC. However, having intervened on this
occasion to support the acts of the TRNC, by showing that the courts
could accept the obiter statements reviewed above, it may prove very
difficult for the British Government to adopt a different stance or
“cherry pick” on any future case which comes before the courts.
Perhaps the most compelling evidence for the recognition of
the TRNC can be found in the reports and actions of the United
Nations itself.
In his report to the United Nations on 1st.
April 2003, Secretary General Kofi Annan stated: “The Greek Cypriot
and Turkish Cypriot parties have been participating, since December
1999, in proximity talks to prepare the ground for meaningful
negotiations leading to a comprehensive settlement. I believe the
time has now come to move ahead. In the course of these talks I have
ascertained that the parties share a common desire to bring about,
through negotiations in which each represents its side — and no one
else — as the political equal of the other, a comprehensive
settlement enshrining a new partnership on which to build a better
future in peace, security and prosperity on a united island. In this
spirit, and with the purpose of expediting negotiations in good
faith and without preconditions on all issues before them, I have
concluded that the equal status of the parties must and should be
recognized* explicitly in the comprehensive settlement, which will
embody the results of the detailed negotiations required to
translate this concept into clear and practical provisions”. (* my
emphasis).
Addressing the Turkish Cypriot Nicosia Bar
Association on 30th. September 2003, the Ambassador to the United
States of America said:
The (Annan) Plan explicitly
enshrines the principle of bi-zonality, asserts the political
equality of Greek Cypriots and Turkish Cypriots, and declares the
two constituent states of the United Cyprus Republic are of equal
status. The plan is based on a partnership of equals.
Although North Cyprus is part of the European Community,
European Laws are suspended there by Article 1 Protocol 10 of the
Act of Accession 2003 pursuant to which Cyprus joined the EU. This
imposition by the EU recognizes the two separate territories (albeit
within one country) and that the TRNC has a separate, distinct and
effective legal system.
Under the laws of the TRNC the Orams
are the lawful registered proprietors of the property in question.
Accordingly it would appear that the correct approach for the
claimant in that case would be to pursue a claim, in Northern
Cyprus, for compensation against the TRNC government, for which
purpose the government has apparently set up a compensation fund.
Indeed, such an approach would sit squarely with the position in
English Law.
In England and Wales, where a proprietor of
land has been registered with absolute title at the Land Registry,
an aggrieved person’s cause of action lies in a claim for
compensation against the Land Registry, not against the registered
proprietor.
In conclusion, having a judgment may be one
thing; the risk of failure of an application to enforce that
judgment in the United Kingdom may be something which the Republic
of Cyprus government consider, politically, very unpalatable.
Kevin Ryan LL.B
Solicitor (non-practising).
|
