1. These appeals raise the question of the enforceability in England of judgments of the courts of the Republic of Cyprus concerning land within the Turkish Republic of Northern Cyprus. The Turkish Republic is not recognised by the United Kingdom or by any country save Turkey, but it has de facto control of the area which it occupies. The appeals have an importance which extends far beyond the parties to them.

2. On 9 November 2004 the respondent to the appeals, Meletios Apostolides, obtained a judgment in default of appearance in the Nicosia District Court in Cyprus against the appellants, David and Linda Orams. On 19 April 2005 judgment was delivered in the District Court refusing to set aside the earlier judgment on the ground that there was no valid defence to the claim. On 21 October 2005 those judgments were registered in, and declared enforceable by, the Queen’s Bench Division of the High Court pursuant to Council Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The appeals are against those registrations.

3. The situation with which the court is concerned can only be understood in the context of the recent history of Cyprus. I shall set it out as briefly as I may and with the intention of avoiding controversy. The Republic of Cyprus came into being in 1960 when the United Kingdom gave up its sovereignty of the island with the exception of the two sovereign base areas of Akrotiri and Dhekelia. This was achieved by, among other instruments, the Treaty of Establishment entered into by the United Kingdom, Greece, Turkey and the Republic itself. The constitution of the Republic was intended to provide a balance between the Greek and Turkish communities on the island. Within three years the bi-communal government of the island had effectively failed. In March 1964 a United Nations peace keeping force, UNICYP, arrived. A Turkish Cypriot administration came into being in the area then under Turkish Cypriot control. In July 1974 there was a coup against the government of the President, Archbishop Makarios. The aim of the coup was to secure union with Greece. On 20 July 1974 the Turkish army invaded the north of the island and secured control of the area now under the administration of the Turkish Republic. One outcome of this was the effective expulsion of Greek Cypriots from much of the area that was occupied. Turkish Cypriots in the unoccupied area left for the occupied area. The Turkish authorities set up an administration for that part of the island. The Turkish Republic of Northern Cyprus, the TRNC was declared in 1983. The TRNC has not been recognised by any country save Turkey. It has control over the relevant area, and the Republic of Cyprus does not. During the negotiations for the accession to the European Union of Cyprus together with nine other countries, it was hoped that a settlement could be reached between the Greek and Turkish communities so the whole island might be brought fully within the EU. But this had not occurred prior to the Treaty of Accession which also brought the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and the Slovak Republic into the European Union. The Treaty was signed on behalf of the Republic of Cyprus on 16 April 2003. A plan had been put forward, called the Annan Plan because it was proposed by the Secretary General of the United Nations of that name, which was intended to resolve the dispute between the Greek and Turkish Communities. The plan was rejected by the Greek community in a referendum held on 24 April 2004. It was accepted by the Turkish community. The result was that the practical division of the island remained unchanged. It had been decided by the European Council on 13 December 2002 prior to the Treaty of Accession that ‘in the absence of a settlement the application of the acquis to the northern part of the island shall be suspended until the Council decides unanimously otherwise, on the basis of a proposal by the Commission.’ The decision was given effect by Protocol No 10 to the Treaty of Accession. The Protocol provided that ‘the application of the acquis shall be suspended in those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control.’ It is agreed that ‘the acquis’, also called ‘the acquis communautaire’, refers to the entire body of legislation of the European Union. It includes all treaties, legislation and the decisions of the European Court.

4. I can now come to those involved. Mr Apostolides is a Greek Cypriot, who lived in the area which is now under the control of the TRNC, where his family owned land at Lapithos in the district of Kyrenia. As a result of the invasion he had to flee. Mr and Mrs Orams are British and live in Hove in Sussex. In 2002 they purchased 2,400 square feet of land, which was part of land which had come into the ownership of Mr Apostolides. It then had a partly built house on it and the lemon trees which had formerly been on it were gone. They purchased it from a Turkish Cypriot, who was the registered owner under the law of the TRNC. He had purchased it from another Turkish Cypriot who, they were told, had left a property in the south of the island and had acquired it from the TRNC. Mr and Mrs Orams paid £50,000. They spent a further £160,000 building their villa, adding a swimming pool and making a garden. In April 2003, following the easing of restrictions on travel to the TRNC, Mr Apostolides visited Lapithos and saw the property. Early in October 2004 he introduced himself to Mrs Orams and they had a pleasant conversation.

The proceedings in Cyprus

5. It is helpful to state at this point that the civil procedure of the courts of the Republic of Cyprus broadly follows that of England in 1954, that being the relevant date as I understand it.

6. On Tuesday, 26 October 2004 Mr Apostolides issued a specially endorsed writ in the District Court of Nicosia naming Mr and Mrs Orams as defendants. It gave their English address. It claimed an order that they demolish the villa, the swimming pool and the fence around their property in Lapithos, that they deliver Mr Apostolides free occupation of the land, and damages for trespass. Mr Apostolides relied on his title to the land.

7. On the evening of the same day service of the writ was effected on Mrs Orams on behalf of herself and her husband at their villa. It is accepted the service was good. The circumstances may be nonetheless of some importance because they may be relevant to whether Mrs Orams had sufficient time in which to arrange for an appearance to be entered. I will return to that.

8. The time limit for entering an appearance was ten days from the service of the writ. The last day was therefore 5 November. On 8 November an application was made on behalf of Mr Apostolides for judgment to be entered in default of appearance. The application was supported by an affidavit sworn on that day by Mr Apostolides at the Cyprus High Commission in London. On 9 November judgment in default of appearance was entered. On 10 November a certificate was obtained in the form prescribed by Annex V to Regulation 44/2001. On 9 November Mr Mentes, the lawyer instructed on behalf of Mr and Mrs Orams, attended at the District Court with the intention of entering an appearance on their behalf. The judgment had already been entered.

9. The judgment required Mr and Mrs Orams to demolish the villa, the pool and the fencing, to give Mr Apostolides possession of the land, and to pay CY£7,654.83 special damages, CY£294.41 mesne profits monthly from December 2004 until delivery up, and CY£380.50 costs, all with interest at 8%.

10. On 15 November 2004 an appearance was entered on behalf of Mr and Mrs Orams. It was not conditional. On the same day an application was issued on their behalf that the judgment be set aside. The application was supported by affidavits from Mrs Orams and Mr Mentes. Following a hearing at which Mrs Orams gave oral evidence judgment was delivered by District Judge Efrem on 19 April 2005 dismissing the application. It was a substantial judgment, 36 pages in translation. The judge held that by reason of the merger of the Kyrenia district with the Nicosia district in 1974 and the land at Lapithos being in the Kyrenia district, the court – that is the District Court at Nicosia, had jurisdiction to try the case (page 20 of the translation). She considered the English case of Hesperides Hotels v Muftizade irrelevant because the court was there concerned with its jurisdiction over foreign real property, namely the hotels. Here, as she held, the court was concerned with real property over which it had jurisdiction. She cited the decision of the European Court of Human Rights, Loizidou v Turkey [1997] 23 EHHR 513, as authority that ownership of land in the north of Cyprus remained with its original Greek Cypriot owners. That defeated the submission that the court should take account of the de facto situation in the north (page 22). She then turned to whether Mr and Mrs Orams had shown an arguable defence (page 23). The onus to establish a good or prima facie arguable defence was on Mr and Mrs Orams (page 25). The basic argument that Mr and Mrs Orams owned the property under the title deed issued by the TRNC was answered by Loizidou. The judge also cited Xenides-Arestis v Turkey, Application no. 46347/99, judgment 22 December 2005, and other ECHR cases to like effect. She held that Mr Apostolides had not lost his right to the land (page 27). She held that the conduct of Mr and Mrs Orams towards the property amounted to trespass (page 30). She held that neither ‘local custom’ nor the good faith of Mr and Mrs Orams could provide a defence (page 31). She held that Regulation No 44/2001 was irrelevant because it was concerned with the recognition and execution of judgments in other jurisdictions and was irrelevant to the question of setting aside the judgment obtained by Mr Apostolides (page 33). The judge held that no prima facie or arguable defence had been shown and so the application to set aside the judgment must be dismissed (page 33). By its order given on 19 April 2005 and drawn up on 26 April 2005 the District Court ordered that the application for setting aside the judgment should be dismissed, and awarded costs to Mr Apostolides.

11. Mr and Mrs Orams have appealed against the judgment of District Judge Efrem of 19 April 2005 to the Supreme Court of Cyprus. The appeal has still to be heard. In the written address filed on behalf of Mr and Mrs Orams and dated 25 November 2005 emphasis is laid on Protocol 10 to the Treaty of Accession and Regulation No 44/2001.

The English proceedings.

12. The procedure for the enforcement of judgments between Member States of the European Union is provided by Regulation No 44/2001. Article 53 provides that a party seeking recognition or applying for a declaration of enforceability must provide a copy of the judgment in question together with an Annex V certificate. Section 1 of Part 74 of the Civil Procedure Rules makes further provision as to the manner in which a judgment is enforced in the High Court. In the present case an application was made in respect of the judgments of the Nicosia District Court of 9 November 2004 and 19 April 2005 on 18 October 2005. Article 41 of the Regulation provides that the party against whom registration is sought shall not be entitled to make any submissions at this stage. By orders of Master Eyre made on 21 October 2005 it was ordered that the judgments be registered and be declared enforceable. On 22 November those orders were served on Mrs Orams at the Nicosia District Court. They were served on Mr Orams at Hove on 31 December 2005. Article 43 provides for the orders of Master Eyre to be appealable by Mr and Mrs Orams. Notice of appeal was served on behalf of Mrs Orams on 22 December 2005. It is agreed that Mr Orams is to be treated as a party to that appeal. So although I am dealing with what is designated an appeal by Article 43, it is in fact the first time that the issues raised by the application for registration are being considered by the court. Article 44 and Annex IV provide that a judgment on an appeal under Article 33 may be the subject of a single further appeal on a point of law.

The issues on the appeals.

13. I will list the issues as I have distilled them from the submissions which have been made, under short headings:

(1) issues arising from the situation of the land;

(2) issues arising in connection Article 6 of the European Convention on Human Rights;

(3) issues arising on Article 1 of Protocol No 1 to the European Convention on Human Rights;

(4) issues arising from the fact that the judgment of 9 November 2004 was a default judgment and Article 34.2 of Regulation 44/2001.

(5) issues in connection with the entry of appearance and Article 24 of Regulation 44/2001.

Issues arising from the situation of the land.

14. I will first look further at the provisions relating to the application of European law to the Republic of Cyprus, second at the manner in which the European Court has approached the land problem, before coming to the terms of Regulation 44/2001 and their application in these appeals.

15. By Article 2 of the Treaty or Act of Accession whereby the Republic of Cyprus became a member of the European Union it was provided that:

From the date of accession, the provisions of the original Treaties and the acts adopted by the institutions before accession shall be binding on the new Member States and shall apply in those States under the conditions laid down in those Treaties and in this Act.

So Community law, the acquis, was made to apply in the Republic of Cyprus. But as I have stated this was subject to Protocol No 10. I will set out the preamble and Article 1 of the Protocol:

“THE HIGH CONTRACTING PARTIES.

REAFFIRMING their commitment to a comprehensive settlement of the Cyprus problem, consistent with relevant United Nations Security Council Resolutions, and their strong support for the efforts of the United Nations Secretary General to that end,

CONSIDERING that such a comprehensive settlement to the Cyprus problem has not yet been reached,

CONSIDERING that it is, therefore, necessary to provide for the suspension of the application of the acquis in those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control,

CONSIDERING that, in the event of a solution of the Cyprus problem this suspension shall be lifted,

CONSIDERING that the European Union is ready to accommodate the terms of such a settlement in line with the principles on which the EU is founded,

CONSIDERING that it is necessary to provide for the terms under which the relevant provisions of EU law will apply to the line between the abovementioned areas and both those areas in which the Government of the Republic of Cyprus exercises effective control and the Eastern Sovereign Base Area of the United Kingdom of Great Britain and Northern Ireland,

DESIRING that the accession of Cyprus to the European Union shall benefit all Cypriot citizens and promote civil peace and reconciliation,

CONSIDERING, therefore, that nothing in this Protocol shall preclude measures with this end in view,

CONSIDERING that such measures shall not affect the application of the acquis under the conditions set out in the Accession Treaty in any other part of the Republic of Cyprus.

Article 1

1. The application of the acquis shall be suspended in those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control.

2. The Council, acting unanimously on the basis of a proposal from the Commission, shall decide on the withdrawal of the suspension referred to in paragraph 1.”

16. The first case in the European Court of Human Rights is Loizidou v Turkey [1997] 23 EHRR 513. The applicant, a Greek Cypriot, had owned property in northern Cyprus and alleged that Turkish forces had prevented her from returning to it. She alleged that Turkey was responsible for continuing violations of Article 1 of Protocol No 1 and of Article 8 of the Human Rights Convention. The majority of the Court held that that the denial of access and subsequent loss of control of the property was imputable to Turkey, and that there had been a breach of Article 1 of Protocol No 1. It was held unanimously that there had been no breach of Article 8 because the applicant had not established that the property had been her home. Among other submissions Turkey relied on Article 159 of the Constitution of the TRNC. That provided that all immovable properties, buildings and installations which were found abandoned on 13 February 1975 when the Turkish Federated State of Cyprus was proclaimed or which were later considered by law as abandoned or ownerless and situated within the boundaries of the TRNC on 15 November 1983 should be the property of the TRNC, and the Land Registry Office should be amended accordingly. As to this the Court stated:

“44. In this respect it is evident from international practice and the various, strongly worded resolutions referred to above that the international community does not regard the “TRNC” as a State under international law and that the Republic of Cyprus has remained the sole legitimate Government of Cyprus – itself bound to respect international standards in the field of the protection of human and minority rights. Against this background the Court cannot attribute legal validity for purposes of the Convention to such provisions as Article 159 of the fundamental law on which the Turkish Government rely.

45. The Court confines itself to the above conclusion and does not consider it desirable, let alone necessary in the present context to elaborate a general theory concerning the lawfulness of legislative and administrative acts of the “TRNC”. It notes, however, that international law recognises the legitimacy of certain legal arrangements and transactions in such a situation, for instance as regards the registration of births, deaths and marriages, “the effects of which can be ignored only to the detriment of the inhabitants of the [t]erritory”.

46. Accordingly, the applicant cannot be deemed to have lost title to her property as a result of Article 159 of the 1985 Constitution of the “TRNC. No other facts entailing loss of title to the applicant’s properties have been advanced by the Turkish Government nor found by the Court. In this context the Court notes that the legitimate Government of Cyprus have consistently asserted their position that Greek Cypriot owners of immovable property in the northern part of Cyprus, such as the applicant, have retained their title and should be allowed to resume free use of their possessions, whilst the applicant obviously has taken a similar stance.

47. It follows that the applicant, for the purposes of Article 1 of Protocol No. 1 and Article 8 of the Convention, must still be regarded to be the legal owner of the land. The objection ratione temporis therefore fails.”

17. Paragraph 45 relates to what is sometimes called the Namibia exception. That is the exception to the principle that the acts, including the laws of a state which lacks international recognition are of no effect, which exception may give effect to acts such as the registration of births, deaths and marriages, and perhaps other transactions between persons in the territory controlled by the unrecognised state. In its Advisory Opinion on the legal consequences for states of the continued presence of South Africa in Namibia notwithstanding Security Council Resolution 276 (1970) the International Court of Justice stated in paragraph 125, quoted in part by the European Court:

“125. In general, the non-recognition of South Africa’s administration of the Territory should not result in depriving the people of Namibia of any advantages derived from international co-operation. In particular, while official acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory.”

18. In paragraph 44 the European Court was rejecting the submission made on behalf of Turkey that the exception enabled or obliged it to recognise the effect of Article 159 of the 1985 Constitution. In the course of its finding that there was a breach of Article 1 of Protocol No 1 the Court stated:

“62. With respect to the question whether Article 1 is violated, the Court first recalls its finding that the applicant, for purposes of this Article, must be regarded as having remained the legal owner of the land

…………………..

64. Apart from a passing reference to the doctrine of necessity as a justification for the acts of the “TRNC” and to the fact that property rights were the subject of intercommunal talks, the Turkish Government have not sought to make submissions justifying the above interference with the applicant’s property rights which is imputable to Turkey.

It has not, however, been explained how the need to rehouse displaced Turkish Cypriot refugees in the years following the Turkish intervention in the island in 1974 could justify the complete negation of the applicant’s property rights in the form of a total and continuous denial or access and a purported expropriation without compensation.

Nor can the fact that property rights were the subject of intercommunal talks involving both communities in Cyprus provide a justification for this situation under the Convention.

In such circumstances, the Court concludes that there has been and continues to be a breach of Article 1 of Protocol No. 1. ”

19. The case of Cyprus v Turkey [2002] 35 EHRR 30 concerned a number of allegations made against Turkey by the Republic of Cyprus arising from the Turkish invasion and occupation of northern Cyprus. One issue was the homes and property of displaced persons. In paragraphs 82 to 102 of its judgment the Court considered whether the judicial organs set up by the TRNC were to be simply disregarded. It considered the Namibia case and Loizidou in that context. It held, in paragraph 98, that they could not be simply disregarded, but whether they might afford a remedy had to be approached on a case by case basis. Under the heading of alleged violations relating to homes and property, the Court stated in paragraph 171 that Turkey did not dispute the assertion that it was not possible for displaced Greek Cypriots to return to their homes in the north. The Court held that in those circumstances the question of domestic remedies within the TRNC did not arise. The Court concluded in relation to Article 8:

“174. The Court would make the following observations in this connection: firstly, the complete denial of the right of displaced persons to respect for their homes has no basis in law within the meaning of Article 8(2) of the Convention; secondly, the inter-communal talks cannot be invoked in order to legitimate a violation of the Convention; thirdly, the violation at issue has endured as a matter of policy since 1974 and must be considered continuing.

175. In view of these considerations, the Court concludes that there has been a continuing violation of Article 8 of the Convention by reason of the refusal to allow the return of any Greek-Cypriot displaced persons to their homes in northern Cyprus.”

20. In relation to the case under Article 1 of Protocol No 1 the Court stated:

“183. The Commission, essentially for the reasons set out by the Court in the above-mentioned judgment [Loizidou], concluded that during the period under consideration there had been a continuing violation of Article 1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot owners of property in northern Cyprus were being denied access to and control, use and enjoyment of their property as well as any compensation for the interference with their property rights.

184. The Court agrees with the Commission’s analysis. It observes that the Commission found it established on the evidence that at least since June 1989 the “TRNC” authorities no longer recognised any ownership rights of Greek Cypriots in respect of their properties in northern Cyprus. This purported deprivation of the property at issue was embodied in a constitutional provision, “Article 159 of the TRNC Constitution”, and given practical effect in “Law no. 52/1995”. It would appear that the legality of the interference with the displaced persons’ property is unassailable before the “TRNC” courts. Accordingly there is no requirement for the persons concerned to use domestic remedies to secure redress for their complaints.”

In paragraph 186 the Court recalled the finding in Loizidou that title had not been lost by the operation of Article 159 of the TRNC Constitution. In paragraph 186 it stated that its reasoning in Loizidou applied generally to displaced Greek Cypriots who were unable to have access to their property. The Court held that there was a continuing violation of Article 1.

21. The judgment in Xenides-Arestis v Turkey was delivered by the European Court of Human Rights on 22 December 2005. The applicant was a Greek Cypriot who had been forced to leave her home and property in Famagusta by Turkish military forces in August 1974. The Court recorded that on 23 April 2003 new measures were adopted by the TRNC regarding crossings between northern and southern Cyprus. It recorded that on 30 June the Parliament of the TRNC had enacted a law setting up an ‘Immovable Property, Determination, Evaluation and Compensation Commission’. It recorded the failure of the Annan Plan as a result of its rejection in the Greek Cypriot referendum. It followed its decisions in Loizidou and Cyprus v Turkey and in two further cases to hold that breaches of Article 8 and of Article 1 of Protocol No 1 were made out. The Court then considered the application of Article 46 which relates to the execution of the Court’s judgments. It referred to the widespread nature of the problem of Greek Cypriot property in northern Cyprus, and to the fact that the Court had approximately 1,400 property cases pending before it brought primarily by Greek Cypriots against Turkey. The Court stated:

“39. Before examining the applicant’s individual claims for just satisfaction under Article 41 of the Convention and in view of the circumstances of the instant case, the Court wishes to consider what consequences may be drawn for the respondent State from Article 46 of the Convention. It reiterates that by virtue of Article 46 of the High Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers of the Council of Europe. It follows, inter alia, that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to select, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects. Subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see Scozzari and Giunta v. Italy [GC], no. 39221/98 and 41963/98, § 249, ECHR 2000-VIII, and Broniowski v. Poland [GC], no. 31443/96, § 192, ECHR 2004-V).

40. The Court considers that the respondent State must introduce a remedy which secures genuinely effective redress for the Convention violations identified in the instant judgment in relation to the present applicant as well as in respect of all similar applications pending before it, in accordance with the principles for the protection of the rights laid down in Article 8 of the Convention and Article 1 of Protocol No. 1 and in line with its admissibility decision of 14 March 2005. Such a remedy should be available within three months from the date on which the present judgment is delivered and redress should be afforded three months thereafter.”

Having considered the submissions made to it in relation to compensation the Court concluded:

“50. In the circumstances of the case, the Court finds that the question of compensation for pecuniary and non-pecuniary damage is not ready for consideration. That question must accordingly be reserved and the subsequent procedure fixed, having due regard to any agreement which might be reached between the respondent Government and the applicant (Rule 75 § 1 of the Rules of Court) and in the light of such individual or general measures as may be taken by the respondent Government in execution of the present judgment. Pending the implementation of the relevant general measures, which should be adopted as provided for in paragraph 40 above, the Court will adjourn its consideration of all applications deriving from the same general cause.”

22. I have mentioned the European Court’s reference to the Immovable Property Commission set up by the TRNC. The effect of the law setting up the Commission is described in the expert report made for the purpose of the present appeals by Professor Dr Zaim Necatagil who represented Turkey in the three cases just considered. He states that the Commission was set up following the admissibility decision of the European Court in Xenides-Arestis of 14 March 2005. He states that the law setting up the Commission ‘is presently under the consideration of the European Court of Human Rights which will decide whether it constitutes, under the Convention system, adequate and effective domestic remedies.’ He states that the Commission has seven members of whom two are non-Cypriot and jurists of high standing. He states that the Commission is fully functional and has been receiving applications from members of the Greek Cypriot community.

23. With that by way of background I can come to the relevant provisions of Regulation 44/2001 ‘on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters’. The Regulation is the successor to the Brussels Convention of 1968 and follows it closely in many respects. I will first set out some paragraphs from the preamble to the Regulation:

(2) Certain differences between national rules governing jurisdiction and recognition of judgments hamper the sound operation of the internal market. Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters and 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.

(6) In order to attain the objective of free movement of judgments in civil and commercial matters, it is necessary and appropriate that the rules governing jurisdiction and the recognition and enforcement of judgments be governed by a Community legal instrument which is binding and directly applicable.

(10) For the purposes of the free movement of judgments, judgments given in a Member State bound by this Regulation should be recognised and enforced in another Member State bound by this Regulation, even if the judgment debtor is domiciled in a third state.

(12) In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close link between the court and the action or in order to facilitate the sound administration of justice.

(16) Mutual trust in the administration of justice in the Community justifies judgments given in a Member State being recognised automatically without the need for any procedure except in cases of dispute.

(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 documents 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. Redress procedures should also be available to the claimant where his application for a declaration of enforceability has been rejected.

24. Article 2 provides the primary rule as to jurisdiction, that persons domiciled in a member state shall be sued there. Article 3 provides that such persons may only be sued in another state by virtue of the rules set out in Sections 2 to 7 of the jurisdiction chapter. Section 6 is headed ‘Exclusive jurisdiction’. It consists of one Article, Article 22. That provides:

22. The following courts shall have exclusive jurisdiction, regardless of domicile:

1. In proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated.

Paragraph 1 continues with a provision relating to tenancies. Paragraphs 2 to 5 contain provisions relating respectively to companies, public registers, patents, trade marks and so on, and the registration of judgments.

25. Article 25 provides:

25. Where a court of a Member State is seised of a claim which is principally concerned with a matter over which the courts of another Member State have exclusive jurisdiction by virtue of Article 22, it shall declare of its own motion that it has no jurisdiction.

Article 33.1 provides:

33. 1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.

Articles 34.1 provides:

34. A judgment shall not be recognised:

1. If such recognition is manifestly contrary to public policy in the Member State in which recognition is sought;

Article 35 provides:

35. 1. Moreover, a judgment shall not be recognised if it conflicts with Sections 3, 4 or 6 of Chapter II, or in a case provided for in Article 72.

2. In its examination of the grounds of jurisdiction referred to in the foregoing paragraph, the court or authority applied to shall be bound by the findings of fact on which the court of the Member State of origin based its jurisdiction.

3. Subject to the paragraph 1, the jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in point 1 of Article 34 may not be applied to the rules relating to jurisdiction.

Section 6 of Chapter II consists of Article 22, quoted above, which provides for exclusive jurisdiction in respect of immovable property to vest in the courts of the member state where it is situated.

Article 36 provides:

36. Under no circumstances may a foreign judgment be reviewed as to its substance.

Article 45 provides:

45. 1. The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration or enforceability only on one of the grounds specified in Articles 34 and 35. It shall give its decision without delay.

2. Under no circumstances may the foreign judgment be reviewed as to its substance.

The effect is that, unless a ground specified in Article 34 or 35 is made out, the declaration of enforceability remains.

26. The submission by Mr Tom Beazley Q.C. on behalf of Mr Apostolides is straightforward. The Republic of Cyprus and the United Kingdom are both Member States of the European Union. The Regulation applies between them in relation to the judgments of the Nicosia District Court. The judgment does not conflict with Article 21.1 and so the Article 35.1 does not require that the judgment should not be recognised. Therefore Article 45 requires that the appeal be dismissed. It is submitted that there is no conflict with Article 22.1 because the land is not situated in another Member State, that is, a Member State other than Cyprus. The land is in fact within the territory of the Republic of Cyprus although not within the area it controls. That is clear, it is submitted, from the Treaty of Accession and Protocol 10. Further, because the case does not fall within Article 22.1 or any other exception permitted by Article 45.1, Article 35.3 prohibits this court from examining the jurisdiction of the Cyprus court.

27. The submission made by Miss Cherie Booth Q.C. on behalf of Mr and Mrs Orams rested on the suspension of the acquis in those areas of the Republic of Cyprus over which its government does not exercise effective control. That is the area which is within the control of the TRNC, and includes the land involved in the present appeals. Miss Booth submitted that the effect of the Protocol was to take the area in the control of the TRNC out of the application of Regulation 44/2001 – Outline Submissions, paragraph 4.15. Put at its starkest, this comes to saying that the registration proceedings are misconceived and of no effect because they are made under a legal instrument which does not apply. The submissions which I heard did not perhaps take it so far, but that is, I think, the logical end point.

28. In support of her submission Miss Booth relied on the Commission of the European Communities v United Kingdom [2003] ECR I-9481, Jersey Produce Marketing Organisation Ltd v The State of Jersey and Another [2005] ECR I-9543 and KappAhl Oy [1998] ECR I-8069. These cases in the European Court are concerned with the construction of limitations on the application of particular aspects of Community law to particular territories. They show that treaty provisions providing for the admittance of a state to the European Union may prevent the application of Community law or aspects of it, to a particular territory such as, in the first case, Gibraltar. But they do not help further. Mr Beazley relied on R v MAFF ex parte Anastasiou (Pissouri) Ltd [1994] ECR I-3087. That case concerned an ‘agreement establishing an association between the European Economic Community and the Republic of Cyprus’ providing for preferential arrangements for citrus fruits and potatoes originating from Cyprus. The agreement provided for the originating status of products to be certified by the ‘customs authorities of the exporting State’. It was held that Member States were precluded from accepting certificates from the TRNC and the de facto division of Cyprus did not warrant a departure from the provisions of the agreement, the only Cypriot State which was recognised being the Republic of Cyprus. I do not find this of assistance beyond its emphasis on the lack of status of the TRNC.

29. Mr Beazley submitted that the purpose of Protocol 10 was to prevent the Republic of Cyprus from being found in breach of Community law by reason of matters occurring in northern Cyprus and beyond its control. He is probably right that this was a purpose. I was not, however, referred to any material which showed what the function of the Protocol was other than a practical solution to the admission of the Republic of Cyprus to the European Union while the division of the island remained. It is for that purpose that I have set out the preamble to the Protocol. In my view there is no reason to limit the intended effect of the Protocol as Mr Beazley suggests. If there was a single, defined intention on the part of the parties to the Treaty of Accession and its Protocols it may equally have been to provide in practical effect that the area controlled by the TRNC should not the subject to Community law for any purpose. It must be doubted whether the question which faces this court was in the minds of any of those who were involved with the content of the Treaty and its Protocols at that time.

30. &