Case Alert - [2018] EWCA Civ 413
Court of Appeal decides whether defendant can extend time to appeal against registration of a foreign judgment
A Cypriot judgment was registered for enforcement in England by a registration order made in May 2014. The Registration Order was served on the appellant/defendant in July 2014. Article 43(5) of Council Regulation No 44/2001 ("the Regulation") provides that "an appeal against the declaration of enforceability is to be lodged within one month of service thereof. If the party against whom enforcement is sought is domiciled in a Member State other than that in which the declaration of enforceability was given, the time for appealing shall be two months and shall run from the date of service, either on him in person or at his residence. No extension of time may be granted on account of distance." (The Recast Regulation No 1215/2012 does not contain any registration procedure so is neutral on this issue. However, the Court of Appeal noted that "the present dispute remains of some importance insofar as cases are still coming through the pipeline").
The appellant, who is domiciled in Cyprus, missed the two months' deadline for appealing by 22 days and sought an extension of time from the English courts to appeal. No extension was allowed at first instance and she appealed to the Court of Appeal.
The Court of Appeal first considered whether it had the power to extend time. It held that it did not. It recognised that a balance had to be struck between allowing a defendant to exercise an effective right of appeal and the Regulation's objective of simplicity and expedition in the recognition and enforcement of judgments. It concluded that "the existence of a general judicial power to extend time for appealing beyond that allowed for in Art. 43(5) in the case of [parties who are domiciled in a Regulation Member State], would undermine the policy of the Regulation and would not be compatible with it". The time limits set out in Article 43(5) are intended to be adequate. The reference to an extension "on account of distance" only does not imply that other grounds are not precluded (the Court of Appeal said that it would be wrong to apply such an interpretation to a non-domestic statute). The Court of Appeal also held that it was not discriminatory that parties who are not domiciled in a Regulation Member State may be treated marginally more generously in this respect (in that, under CPR r74.8(3), a prospective application for an extension of time by such parties made within the two months period is capable of producing an extension to a date outside that period).
The Court of Appeal went on to hold that even if it was wrong about jurisdiction, it would have refused to exercise its discretion to extend time. The appropriate test to apply would have been that laid down in Denton v TH White and the Court of Appeal would have held that "In all the circumstances of this case, informed by the context and even assuming (without deciding, in the Appellant's favour) "no harm done", there is no warrant for granting a substantial extension of time, so cutting across the policy and principles of the Regulation".
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