Bar's big guns lose battle over Cypriot holiday home

20 January 2010

Two of the Bar’s top QCs, Cherie Blair and Nicholas Green, chairman of the Bar Council, have failed to persuade the Court of Appeal that it should not enforce a Greek Cypriot judgment on a holiday home in northern Cyprus because it would damage the peace process on the island.

The government of Turkish-controlled northern Cyprus has not been recognised by any state apart from Turkey. The British couple who bought the land, David and Linda Orams, said they bought it in good faith from a third party who had acquired it from the Turkish Cypriot authorities.

Nicosia District Court in the Republic of Cyprus ruled that the house should be demolished and the land transferred to Meletios Apostolides, its original owner before Turkey invaded the northern part of the island in 1974.

Nicholas Green QC argued that for a UK court to enforce this judgment would prejudice peace negotiations.

Delivering the leading judgment in Apostolides v Orams and Orams [2010] EWCA Civ 9, Lord Justice Pill rejected this argument.

“International support for attempts to achieve a settlement in Cyprus do not convert into an obligation on a United Kingdom court to assess whether a decision of the court does or does not support the peace process,” he said.

He went on: “It can cogently be argued that a refusal to recognise the lawfully made judgments of a court in a lawfully constituted state which is a member of the European Union would be to inflame the situation.”

Pill LJ added that even if the UK government told the court that “absolute priority” must be given to not prejudicing the peace negotiations, the government could not direct the court not to enforce the judgment.

Cherie Blair QC argued that the Greek president of the Grand Chamber of the ECJ, which ruled in favour of Apostolides in April 2009, should have rescused himself because his contacts with the Republic of Cyprus “created an appearance of bias”.

Blair said that Judge Skouris had visited the republic in November 2006 and received the Makarios III Grand Cross which the president of Cyprus said was for his contribution to European law and “support to Cyprus”.

Lord Justice Pill rejected these arguments, saying that there was “no appearance of bias in this case”.

He went on: “The present case was to be decided, and was decided, by a Grand Chamber according to legal principles. The perception of the reasonable and informed observer would be, as is my perception, that there was no real possibility that the president would be influenced by the honour he received or by his other contacts.

“The judgment of the court is in no way tarnished by those contacts, considered either individually or cumulatively. The judgment may be applied and no further reference is appropriate.”

Lord Justice Lloyd and Sir Paul Kennedy agreed that the appeal of Aristolides against Mr Justice Jack’s High Court ruling should be allowed.

Lloyd LJ said that no further appeal to the Supreme Court was possible under article 34.1 of EU regulation 44/2001 on jurisdiction and enforcement of judgments.

“The position is acte clair in favour of Mr Apostolides and a further reference to the ECJ is neither necessary nor appropriate, even though no further appeal is possible,” he said.