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[donyork]

One of the striking features of the Orams case —the British couple ordered on November 9 to demolish their house in Lapta — is the assumption, at least by those who wish it to be so, that because southern Cyprus is now a member of the EU it can have its judgments enforced through the English courts and that in consequence the Orams will risk losing their UK assets.

What does not seem to be part of the mindset of those eagerly awaiting this outcome is that the English court might, to put it no higher than that, reject the application from the Greek-Cypriot court, with some sharp words to boot. If so, then what appears in such quarters to be a great victory will end as humbling defeat. What is more, the possibility exists that the plaintiff in this matter might then find himself facing substantial costs and damages.

Another possible scenario is that by their own strict standards the English courts may simply refuse to have any part in any of this. They may well take the view, without deciding the issues involved, that they are not competent to deal with a property issue which is no more within their jurisdiction that that of the applicant court (which admits that it cannot enforce it own judgment in northern Cyprus). If so, the plaintiff will find himself not only holding a worthless piece of paper, but one which by then will have cost him a small fortune (litigation in England is hugely expensive —and can be ruinously so for those on the wrong end of a judgment).

One of the difficulties facing the plaintiff and his lawyer is that they obtained an order on November 9 only twelve days after their summons was delivered — I hesitate to say ‘served’ — at the Orams home. Mrs Orams on October 27 was present but her husband was then in England. The summons, written in Greek, imposes in itself no legal obligation on the persons named therein, since they are not subject to the Greek-Cypriot courts. This is a substantial defect in seeking another court in another member state to endorse as a lawful document.

It could be further argued that these defects were substantially compounded by the sheer scale of the claim, set against the minimal time allowed in the summons for an appearance to contest it — a mere ten days. This was not a run-of-the-mill civil claim but a demand for quite an extraordinary order bristling with political hand grenades— that the defendant should demolish his house and pay substantial damages to the plaintiff. Yet, without the defendants either being present or represented — an impossibility in the circumstances in which they had been placed — the court simply rubber-stamped the claim as blithely as if it were dealing with an unpaid electricity bill. This may strike an English judge as astonishing.

There would appear to be other factors which might not look well in an English court. The lawyer involved has made some frank admissions in the press about his motives and means — so much so that he could find his own conduct coming under legal scrutiny. The Orams were, it transpired, singled out merely because it so happened that he had their UK home address, an essential element in his stated aim to have a Greek-Cypriot order enforced in England under EU rules. It could have been someone else, it just happened to be them.

It is an oft-quoted maxim in English law that justice must not only be done, but be seen to be done. I fear that on this score alone the Orams case leaves some serious question marks over the handling of this particular claim in this particular way. What can be said with certainty is that these serious questions are likely to be given a considerable airing in any English court, should indeed the matter ever get there. In which case it may not be the Orams who come out of this damaged, but the legal process which sought to use them as the means to another end.

One must, of course, remember that as yet the case has not been finally determined for there is to be an appeal. It is therefore just possible that a Greek-Cypriot judge may yet come to the view that in circumstances where he or she cannot make an order which can be enforced, then he or she cannot make an order at all. It would be a fresh breeze of reality, but I would not bet on it.

[erolz]

Hi donyork and welcome to the forum.

I found your post interesting. Thanks for making it.

[Piratis]

Interesting to see how some criminals will do everything they can to keep what does not belong to them. Are you one of them donyork? Or you are one of those thiefs that sells our properties in the occupied Cyprus and you are trying to give a boost to your business?

[-mikkie2-]

Are you a lawyer by any chance donyork?

I fail to see how a British court can make a political decision regarding this case.

The Legal title holder is the Greek Cypriot. He has the paperwork to prove that his is his land. There is equal proof that he Orams built property on his land. That is the legal basis of the order.

[erolz]

Interesting to see how some criminals will do everything they can to keep what does not belong to them. Are you one of them donyork? Or you are one of those thiefs that sells our properties in the occupied Cyprus and you are trying to give a boost to your business?

Do you have to be so personal Piratis?

This was a well written (and well reasoned, as far as I can tell, with no legal backgroud) post about the legal aspects of the Orams case and what the 'process' might be trying to get the RoC court ruling enforced in the UK. Talking about thiefs and criminals adds nothing to this debate. It just looks childish and extreme in my humble opinion. If you have comments or disagreements about the posters article then raise them - there really is no need and little point in your response.

Have you ever headr of the expression 'do not shoot the messanger (because you do not like the message)' ?

[erolz]

The following is a scan / ocr of a Cyprus Today article (dec 4-10 2004) on the same subject.

The ramifications of the [South] Cyprus court ruling against David and Linda Orams continue to exercise the minds of those involved in the sale of properties in the TRNC to residents of the EU.

Mr Apoatolides, the pre-1974 owner of the land in question has obtained an order from the Greek Cypriot court ordering Mr and Mrs Orams to demolish the house which they have built and to pay compensation.
Mr and Mrs Orams divide their time between their property in North' Cyprus and England, where they continue to have assets.

It is acknowledged that the order, in so far as it relates to the demolition of the property and the delivery up of the land to Mr Apostolides, is incapable of enforcement, but the importance of the case is that since Cyprus's accession to the EU on May l, 2004 Mr Apostolides believes that he has the right to use the provisions of European 'Law to enforce the money judgement which he has obtained

A Turkish Cypriot legal commentator has referred to the assimilation of the 1968 Brussels and Lugano Conventions into Cyprus law by virtue of its accession to the- EU. Those Conventions have, of course, now been replaced: by a more recent Directive. (44/2001 of' December 22, 2000, on Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters).

The Directive will require detailed consideration, should M r Apostolides seek, to enforce his _judgement in England. The broad aim of the Directive (as with the Conventions which preceded it) is to make a judgement obtained through the courts in one member state of the EU enforcable in any other member gate without any reconsideration of the merits of the case. Generally speaking, provided that the form of judgement is seen to be correct, the courts in the enforcing state will give effect to the judgement without further proof.

There are a number of points, which will have to be considered should the matter come before the English courts. The Directive sets out in Article 34 the limited number of grounds on which a judgement obtained in one member state may not be recognised in others.

Of particular importance in the Apostolides case is the fact that a judgement will not be recognised where it has been given in default if the defendant has not been served with the relevant court papers or has not been given a proper opportunity to defend the case. It would seem that this will be a defence which Mr and Mrs Orams will be able to raise in any, enforcement proceedings brought in England.

Of wider importance; given that circumstances may exist in which proceedings could have been served properly and the judgement obtained other than by default, is the provision in the Directive that a judgement will not be recognised if such recognition "is manifestly contrary to public policy in the member state in which recognition is sought".

A number of issues of public policy arise:

An English court may be prepared, on grounds of public policy, to examine whether the Cyprus court had jurisdiction to hear the claim in the first place.

Article 22 of the Directive provides that where the subject matter of the dispute is real property (eg land and buildings), only the courts in the member state in which the property is situated will have jurisdiction to hear the claim. The non-recognition of the TRNC is a matter of political determination rather than legal reasoning. The principles of international law would all point to the TRNC meeting the requirements for a separate and independent state, Reference has been made to the European court decision in Loizidou v Turkey. Writing in Cyprus Today (November 27 to December 3, 2004) the Turkish Cypriot legal commentator, Mert Guclu, has also referred to a decision of the English Court of Appeal in Hesperides Hotels v Aegean Turkish Holidays. The writer expresses some surprise at the references to Lord Denning's comments in the latter case. It must be borne in mind that the case subsequently went on appeal to the House of Lords, where the decision of the Court of Appeal was overturned. ' The Court of Appeal felt itself bound by a certificate issued by the Secretary of State for Foreign Affairs which stated that Her Majesty's government did not recognise the TRNC either de jure (as a matter of right) or de facto (as a fact).

It must be questioned, some 25 years on, whether the Foreign Office, would deny to a stable, democratic society which clearly gives effect to the desire for self-determination of the Turkish Cypriot community, at least a recognition that it is de facto a separate, independent state.

Importantly, the House of Lords in the Hesperides case- was addressed in argument on whether the TRNC ought to be recognised as a legal (if not political) entity. Although the-House of Lords was able to reach its decision an other grounds and so declined to decide the issue, it: clearly did not accept the issue of the certificate as- determinative and it must therefore be open for further consideration. The Loiaidou case needs to be considered , in the light of the fact that it was decided some considerable time ago. Indeed one of the findings of the court was that the TRNC
and operated by the Turkish government and military, a situation which no longer applies to any degree.

In practical terms, the land in dispute is not situated in a member state. The English and other courts have often recognised the existence of legal systems, laws and rules even where the entity - which has made or introduced them is not recognised. This line of authority goes back as far as the 1930s with the unrecognised state of Manchuria and has also been applied to Taiwan.

In the- case under review, the successful plaintiff has no chance of enforcing his judgement in the jurisdiction in which he - has obtained it and his only hope is to look to a foreign court . to help -him out. It must be s consideration whether public policy as interpreted by -the English courts will consider whether that is a proper way to proceed.

Here at PI Property International PLC and Medview Homes, with our considerable experience of dealing with UK residents, : we have always been aware of the potential for someone in the southern part of the island to attempt to put off potential buyers._ It is for that reason that we, alone of all the developers in the TRNC, have ' offered our guarantee and indemnity to protect our buyers against any damaging action
Mr Apostolides may have- his judgement in Cyprus but he has a considerable way to go before that judgement becomes worth more than the paper on which it is written.

Martin Clitheroe LL B (Hons) In-house legal adviser
PI Property international Plc
and Medview Homes London office.

[Piratis]

Talking about thiefs and criminals adds nothing to this debate.

This debate is exactly about thieves (the ones who sell properties that do not belong to them) and criminals (the ones that while they know that the property is stolen they accept it).

The debate is not if criminals should be penalized or not. Criminals should always be penalized. The questions is how and when these criminals will pay for their illegal actions.

[erolz]

This debate is exactly about thieves (the ones who sell properties that do not belong to them) and criminals (the ones that while they know that the property is stolen they accept it).

The debate is not if criminals should be penalized or not. Criminals should always be penalized. The questions is how and when these criminals will pay for their illegal actions.

No this thread was clearly about the legal aspects involved in taking the RoC ruling to the UK and having it enforced there.

Whining about criminals and about criminals needing to be punished adds nothing to the debate about this case and the legal process of having the ruling enforced in the UK.

There are plently of other threads where you can and do sever up your indignant self rightgeous lectures. Why not leave this one for those 'grown ups' that are interested in a serious debate about the technicalites of the process of having this RoC ruling enforced in the UK?

[Piratis]

Whining? We are talking about stealing of properties of 200.000 people here, and you dare to call this "whining"?

This is not a matter of "technicalities". If you want to talk about technicalities, talk. I will talk about what this matter really is about: selling and buying of stolen properties, and criminals that are trying to get away with it by using some "technicalities". For me this is what this thread is about.

[brother]

This thread has obviousley opened a sore point with some people but may i suggest that if you want justice get that idiot of a leader tassos to come and agree a solution who at the minute is trying to use TECHNICALITIES to delay so he can use the cyprus issue against turkey to satisfy his own personal vendeta.