Linda and David Orams vs Meletis Apostolides

20 September 2008 - Submissions to the European Court of Justice.

The case concerns Mr Meletis Apostolides who is seeking to regain possession of his land in Lapta, North Cyprus which is currently occupied by Linda and David Orams, who have built a house on the land.

The Greek Republic of Cyprus (GROC) lawyer, Constantinos Candounas refers to the European Court of Justice (ECJ) as the last part of a three stage process. The first part was an order from a GROC court ruling in favour of Mr Apostolides, and the second part the refusal of a UK Court to recognise the judgment of the GROC court. Therefore, the matter was sent to the ECJ by Mr Apostolides' lawyers.

It should be noted that the strategy of Mr Apostolides' lawyers was to persuade a UK court to seize their main home in Brighton. Many commentators considered this underhand skulduggery. The UK court was not persuaded to seize the Orams' house in Brighton.

The opinions of the UN were presented to the ECJ including a statement from the former Secretary General, Kofi Annan, that using the court system to inflame the delicate issue of property rights in Cyprus does not help towards an overall political settlement. This statement must be considered supportive of the Orams, and the TRNC authorities have implemented an internal mechanism for the resolution of property claims by dispossessed Greeks - this is the TRCN Property Commission.

The commencement of negotiations between the new GROC president Demetris Christofias and Mehmet Talat of the TRNC was referred to.

The Orams' solicitor is Mr Hasan Vahip, who has offices in London. Ms Cherie Blair did not apparently make an appearance. Her presence at Luxembourg would undoubtedly have helped the Orams' case. We do not have any definitive information as to why she did not appear.

ERRATUM of 3 October 2008 - Ms Cherie Blair QC did appear on behalf of the Orams, and we thank Mr Vahip for bringing this error to our attention.

Mr Nicholas Green QC also appeared. Mr Green is from Brick Court Chambers and has a reputation in the areas of Competition and European Law. He is regarded as a 'quick thinker' , is able to conceptualise innovative approaches to a case, and 'superb at strategy'. Ms Cherie Booth, also known as Blair, the wife of the former UK Prime Minister, is a well known figure in the both the UK and EU law circles.

Several newspapers in the TRCN have criticised successive TRNC administrations for taking a passive attitude to the Orams' case and allowing the GROC to monopolize the international media coverage of the dispute.

A ruling is due in December 2008.

Comment - It is important to understand what issues are being considered by the ECJ. The Greek side are presenting the court hearing as the culmination of the three part process, as outlined above. This gives the impression that the ECJ will rule on the main issue of the case. That issues is whether it is lawful for Linda and David Orams to live in a villa they have built on land in Lapta, which was previously occupied and owned by Mr Apostolides. The Greek public relations releases also stress that the ECJ verdict, when it eventually comes, may mean that the Orams are forced to demolish their villa in Lapta and hand back possession of the land to Mr Apostolides.

Unfortunately for the Greeks, this is not the issue being considered by the ECJ. The deliberations of the ECJ are in response to technical matters raised by Lord Phillips of the UK Court of Appeal. These technical queries are detailed in the section at the bottom of this page. The queries emanate from the ruling in favour of the Orams by Mr Justice Jack in the UK High Court during September 2006, and the subsequent appeal by Mr Apostolides to the UK Court of Appeal.

The best outcome that the Greek side can hope for is that the ECJ confirm their earlier position which they first articulated in 1998 with respect to Titina Loizidou. This is that the property rights of dispossessed (Greek) persons in North Cyprus are not extinguished simply by virtue of the fact that the area is occupied by the Turkish army. In other words, while the international legal status of North Cyprus remains unresolved, the ECJ continues to recognise the historical rights of dispossessed Greeks, and by implication, the rights of Turkish Cypriots who lost their land in the South.

Even if the ECJ confirms this point, this does not mean that the Orams will be forced to demolish or abandon their villa in Lapta. The ruling of the ECJ will be forwarded to the UK Court of Appeal and Lord Phillips will consider its implications for the appeal by Mr Apostolides against the judgment made Mr Justice Jack in favour of the Orams.

Should the ECJ come down strongly on the Greek side, that will not force the UK Court of Appeal to overturn the judgment made in September 2006 in favour of the Orams. It is, in our opinion, likely that the judgment in favour of the Orams will stand. However, this is a speculative opinion.

It should be remembered that the ECJ has never ruled that Turkey should revoke TRNC title deeds, issued to UK purchasers of TRNC property, like the Orams. In the case of Titina Loizidou, they fined Turkey for preventing Ms Loizidou from having access to her property, which was on an army encampment. In the absence of a legal solution to the Cyprus problem, this is perhaps understandable from a legal perspective.

Since the Loizidou case, the TRNC has created the Immovable Properties Commission, which was set up to deal with land claims from dispossessed Greeks. The Property Commission has received informal recognition from the EU, and the list of some 1,300 Greek applications received by the ECJ have been referred to the Property Commission. The ECJ have found the establishment of the TRNC Property Commission useful, as it means that some 1,300 cases can be referred elsewhere and will therefore not clog up their own proceedings.

The deliberations of the ECJ are overshadowed by the commencement of negotiations by Messrs Christofias and Talat. It is unlikely that the ECJ will wish to make any definitive ruling which would affect, stall or cause these talks to break down. The aim of these talks is to normalise relations between the two communities of Cyprus and to bring to an end the informal partition of the island. In other words, to seek an internationally recognised solution to the several dimensions of the 'Cyprus problem', one of which is property rights.

Within this framework, the aim of the Greeks should become clearer. Even in their wildest dreams, the Greek side are not expecting the ECJ to direct the Orams to leave their house in Lapta and hand it back to Mr Apostolides. The very best that the Greek lawyers can hope for is a favourable response from the ECJ to the queries sent from London. Should that happen, then it may just be conceivable that Mr Apostolides' lawyers could persuade the UK Court of Appeal to recognise and enforce the initial judgment of the GROC court. In the highly unlikely event that this happens, the irony would be that the Orams would have their property in Brighton seized by the UK courts, but that their ownership of the villa in Lapta would not be affected.

13 September 2007 - List of Questions forwarded to the European Court of Justice by Lord Phillips

These are the points referred to the European Court of Justice by Lord Phillips in June 2007.

1. Does the suspension of the application of the acquis communautaire in the northern area by Article 1(1) of Protocol No 10 of the Act of Accession 2003 of Cyprus to the EU preclude a Member State Court from recognising and enforcing a judgment given by a Court of the Republic of Cyprus sitting in the Government-controlled area relating to land in the northern area, when such recognition and enforcement is sought under Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ( 1 ) ( ‘ Regulation 44/2001 ' ), which is part of the acquis communautaire ?

Comment - The Greek Republic of Cyrus (GROC), on joining the EU, made an application that EU jurisdiction could not be extended to the North of Cyprus, that is, the Turkish Republic of North Cyprus (TRNC). GROC did this to avoid responsibility and liability in the event that the TRNC breached, ignored and repudiated EU mandates.

So the question is whether a UK court should recognise and enforce a judgment from a GROC court dealing with a land issue in the TRNC. The importance of this question is that the Defendants, Linda & David Orams, have a house in Brighton, and the Claimant, Meletis Apostolides, wants the UK authorities to seize this house, sell the house, and lodge the sale proceeds with the GROC court.

2.. Does Article 35(1) of Regulation 44/2001 entitle or bind a Member State court to refuse recognition and enforcement of a judgment given by the Courts of another Member State concerning land in an area of the latter Member State over which the Government of that Member State does not exercise effective control? In particular, does such a judgment conflict with Article 22 of Regulation 44/2001?

Comment - A UK court is bound to refuse to recognise a judgment made by a GROC court concerning land in the TRNC. This is what Mr Justice Jack did in the UK during July 2006.

3. Can a judgment of a Member State court, sitting in an area of that State over which the Government of that State does exercise effective control, in respect of land in that State in an area over which the Government of that State does not exercise effective control, be denied recognition or enforcement under Article 34(1) of Regulation 44/2001 on the grounds that as a practical matter the judgment cannot be enforced where the land is situated, although the judgment is enforceable in the Government-controlled area of the Member State?

Comment - Should the judgment of the GROC court have international recognition due to the fact that it relates to land in TRNC, bearing in mind that the judgment is recognised in GROC ? So, if Linda and David Orams visited GROC, they could be arrested and if they had any assets in GROC, they could be seized.

4. Where -

(a) — a default judgment has been entered against a defendant;

(b)— the defendant then commenced proceedings in the Court of origin to challenge the default judgment; but

(c)— his application was unsuccessful following a full and fair hearing on the ground that he had failed to show any arguable defence (which is necessary under national law before such a judgment can be set aside),

Can that defendant resist enforcement of the original default judgment or the judgment on the application to set aside under Article 34(2) of Regulation 44/2001, on the ground that he was not served with the document which instituted the proceedings in sufficient time and in such a way as to enable him to arrange for his defence prior to the entry of the original default judgment? Does it make a difference if the hearing entailed only consideration of the defendant's defence to the claim ?

Comment - This refers to the fact that the GROC court summons was delivered to Linda and David Orams at their house in Lapta, TRNC. The papers were written in Greek and it took the Orams a significant time to get the papers translated into English and to gain an understanding of what was going on. By this time, the GROC court had heard the case in the absence of the Orams and made a judgment in favour of the Claimant, Mr Meletis Apostolides.. In addition, when the GROC court did receive a challenge from the Orams to its ruling in favour of Mr Apostolides, it did not hear the case again in full. The GROC court simply listened to the defence and deemed it irrelevant. So the question is whether the GROC court should have heard both the Claim and the Defence together.

5. In applying the test in Article 34(2) of Regulation 44/2001 of whether the defendant was ‘ 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 ' what factors are relevant to the assessment? In particular:

(a) Where service in fact brought the document to the attention of the defendant, is it relevant to consider the actions (or inactions) of the defendant or his lawyers after service took place?

(b) What if any relevance would particular conduct of, or difficulties experienced by, the defendant or his lawyers have?

(c) Is it relevant that the defendant's lawyer could have entered an appearance before judgment in default was entered?

Comment - Is the question of how the GROC court papers were given to the Orams and the action which the Orams took after receiving the papers a relevant consideration ? The GROC papers were apparently handed to Mrs Orams only, as her husband was in England. In addition, the Oram's TRNC lawyers are not recognised by GROC, and this is the 'difficulty' referred to.

Copyright - Leslie Hardy, 20 September 2008