Neutral Citation Number: [
 2015]
  
EWHC
  
986
  (QB ) 
  Appeal Ref: QB 2014 -0511 and QB 2014 -0586 
IN THE HIGH COURT OF JUSTICE  
QUEEN'S BENCH DIVISION  
ON APPEAL FROM DEPUTY MASTER EYR E 
 
  Royal Courts of Justice  
Strand, London, WC2A 2L L 
  14/04/
 2015 
B e f o r e :  
MRS JUSTICE ANDREWS DB E 
____________________  
Between:  
 
 IOANNA CHRISTOFI  Appellant  
 - and -  
 NATIONAL BANK OF GREECE 
(CYPRUS) LTD  Respondent  
____________________  
Daniel Warents (instructed by Fletcher Day) for the Appellant  
Camilla Lamont (instructed by Charles Russell Speechlys LLP) for the 
Respondent  
Hearing date: 26 March 
 2015
   
____________________  
HTML VERSION OF JUDGMENT
 
____________________  
Crown Copyright ©  
Mrs J ustice Andrews:   
1. On 21 July 2006 the Respondent Bank ("the Bank") issued proceedings in the 
District Court of Nicosia, Cyprus, against the Appellant ("Mrs Christofi") and 
her husband, Lambros Christofi, under action number 4900/2006. The 
proceedings relate d to sums alleged to be due under a loan agreement dated 4 
September 2002 made between the Bank and Mr Christofi, and a personal 
guarantee and mortgage over certain property in Cyprus given by Mrs 
Christofi as security for that loan.  
2. The proceedings were served personally on Mr Christofi on 31 July 2006. It is 
the Bank's case that this was valid service on both Mr and Mrs Christofi under 
the law of Cyprus. A firm of advocates in Cyprus, Kallis & Kallis, entered an 
appearance ostensibly on behalf of both Mr  and Mrs Christofi, and defended 
the proceedings for around 4½ years, filing a defence and counterclaim. 
Eventually the proceedings were compromised in terms of a consent order 
made by the Cypriot Court ("the Settlement Order") under which it was 
ordered t hat Mrs Christofi, jointly and severally with her husband, pay:  
a) The sum of €2,221,181.90 plus interest to the date of settlement and  
b) The sum of €12,443 for costs, plus interest to the date of settlement, a fee of 
€102 for the settlement order and €1783.56 VAT.  
3. The Settlement Order provided for a suspension of execution until 30 April 
2011, on the basis that if Mr and Mrs Christofi paid the sum of €3,519,770.96 
plus costs by that date the jud gment would be deemed paid in full. However, 
no payment was made by the deadline. The Bank therefore started to take 
action to enforce the terms of the Settlement Order, first in Cyprus, and then in 
the UK. By the time that the Bank sought registration of the Settlement Order 
in the UK, the total amount due under it was calculated at €7,368,044.88. 
Credit was given for some relatively small amounts recovered in Cyprus.  
4. On 14 May 2014, following a "without notice" application made by the Bank 
pursuant to CP R 74.3, Deputy Master Eyre registered the Settlement Order for 
enforcement pursuant to Council Regulation EC 44/2001 ("the Judgments 
Regulation"). He made two Registration Orders, it appears in order to cater for 
the alternative possibilities that Mrs Chri stofi was domiciled in England or in 
Cyprus, but nothing turns on this.  
5. Article 34(2) of the Judgments Regulation sets out the limited grounds on 
which a judgment of another EU Member State shall be refused recognition. 
One of these is:  
"where it was giv en in default of appearance, if the defendant was not 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, unless the defendant failed to commence proceedings to challenge 
the judgment when it was possible for him to do so."  
6. The purpose of Article 34(2) of the Judgments Regulation (and of its 
predecessor, Article 27(2) of the Brussels Convention 1968) is to ensure that a 
judgment is not reco gnized or enforced if the defendant has had no 
opportunity of defending himself before the court first seised (see e.g. Case 
166/80 Klomps v Michel  [1981] ECR 1593 , at [9] and Case C -172/91 Sonntag 
v Waidmann  [1993] ECR 1 -1963, at [38]). The issue of whether a judgment or 
order is given " in default of appearance " is not determined by the rules of 
procedure of the Contracting State in which the judgment or order is obtained, 
or by the law in the Contracting State where it is sought to be enforced. It is 
treated as an issue of fact. Thus the fact that service was properly effected 
under the law of the court of origin, as the Bank contend s it was, does not 
preclude re -examination of whether it was effected in sufficient time to enable 
the defendant to arrange a defence.  
7. Mrs Christofi claims that the first time she became aware of the existence of 
the proceedings in Cyprus was when she was  served with notice of the orders 
made by Deputy Master Eyre. She alleges that her husband deliberately kept 
the proceedings from her, that Kallis & Kallis had no authority to represent her 
in the Cypriot proceedings, and that the signature on a letter of retainer 
purporting to be her signature is a forgery (though she has adduced no expert 
evidence in support of that assertion). Thus she contends this case is similar to 
Case C -78/95 Hendrickman v Magenta Drug &Verlag GmbH,  (10 October 
1996) in which the Co urt of Justice of the European Union (CJEU) held that 
an order obtained against a defendant in Germany with the purported consent 
of a lawyer in circumstances where the defendant had not instructed the 
lawyer was to be treated as given in default of appear ance because " where 
proceedings are initiated against a person without his knowledge and a 
lawyer appears before the court first seised on his behalf but without his 
authority, such a person is  quite powerless to defend himself. "  
8. Mrs Christofi seeks to ap peal the registration of the Settlement Order on those 
grounds, pursuant to CPR 74.8. Such an appeal does not require permission, 
but there are time limits for appealing. In this case, the time prescribed by 
Article 43(5) of the Judgments Regulation is two  months from the date of 
service upon Mrs Christofi of the Registration Orders in person or at her 
residence, it being common ground that Mrs Christofi is domiciled in Cyprus. 
That time limit is reflected in CPR 74.8(4) which provides that:  
"The appellant 's notice must be served  
a) where the appeal is against the granting of registration, within  
i) one month; or  
ii) Where service is to be effected on a party not domiciled within the 
jurisdiction, two months, of service of the registration order."  
Although  sub-paragraph (a) (ii) could be interpreted as referring to service of 
the appellant's notice on a respondent who is domiciled outside the 
jurisdiction, it is plainly intended to mean that where service of the 
registration order  is to be effected on a par ty not domiciled within the 
jurisdiction, that person has two months from service on him  in which to serve 
the appellant's notice on the opposing party. The upshot is that the non -UK 
domiciled appellant must both file the appellant's notice with the court and 
serve it on his opponent within two months of service on him of the 
registration order.  
9. On 17 June 2014 the Bank obtained interim charging orders over Mrs 
Christofi's English properties. However, its solicitors, Charles Russell, were 
not notified of t his by the court until after they sent a chasing letter on 7 July 
2014. Further inquiries of the court office revealed that a hearing of the 
application to make the charging orders final was listed for 30 July 2014. Once 
Charles Russell were aware of the s ituation they acted with commendable 
speed. Mrs Christofi was served with copies of the Registration Orders and the 
interim charging orders on 11 July 2014, under cover of a letter from Charles 
Russell dated 8 July, which also enclosed a copy of the Settle ment Order.  
10. It is accepted by both parties that the time for filing and serving the appeal 
therefore expired on 11 September 2014. However, the appeal was neither 
filed nor served within that time limit. The appellants' notice was filed on 30 
September 20 14 and served on 3 October 2014, 22 days out of time. The 
evidence before me does not adequately explain why such a long delay 
occurred.  
11. On 22 July 2014, Mrs Christofi's solicitors, Fletcher Day, wrote to Charles 
Russell to say that they had recently been instructed, and that their client had 
only received Charles Russell's letter of 8 July on 11 July. They said that the 
letter was the first their client knew of the Settlement Order, the Registration 
Orders or the interim charging orders, and complained that the Bank should 
not have taken steps to enforce the registered judgment until after the time 
limit for appealing the registration had expired (a complaint which Mr 
Warents, who represented Mrs Christofi on this appeal, sensibly did not 
pursue). They said that Mrs Christofi intended to commence proceedings in 
Cyprus to set aside the Settlement Order and had instructed Cypriot lawyers to 
do so; she would also be appealing against the Registration Orders "in due 
course".  
12. Fletcher Day pointed o ut that the question whether the interim charging orders 
should be made final could not be resolved at a hearing on 30 July 2014 if Mrs 
Christofi was going to appeal against the Registration Orders. They proposed a 
consent order agreeing to the vacation of  the hearing on 30 July, on the basis 
that their client should inform the Court if an appeal against the Registration 
Orders was filed, and if the Court were so informed then the Bank's 
application for final charging orders should abide the outcome of that  appeal. 
In the event that Mrs Christofi did not file an appeal against the Registration 
Orders by 4pm on 11 September, the hearing of the Bank's application for 
final charging orders should be listed for the first available date thereafter.  
13. It is clear f rom that proposal that Fletcher Day were well aware of the deadline 
for appealing. The reference to informing the Court if an appeal was filed was 
presumably to ensure that those responsible for listing the hearing of the 
application to make the charging o rders final were kept apprised of 
developments. They would not necessarily otherwise know that there was an 
appeal pending, as appeals are dealt with administratively by a different 
section of the court office.  
14. In their letter in response, sent on 25 July  2014, Charles Russell disputed Mrs 
Christofi's alleged lack of prior knowledge of the Settlement Order and 
contended that there was no basis for setting it aside, as it had been made by 
consent and the time limit for an appeal (in Cyprus) had expired. The y noted 
the intention of Mrs Christofi to appeal the Registration Order "in due course". 
They then said that in the interests of saving costs, the Bank would be willing 
to agree to an adjournment of the hearing of the final charging order 
application on th e basis that Mrs Christofi accepted that she had been served 
with, inter alia, the Registration Orders. They enclosed a draft Consent Order, 
which was subsequently agreed and signed.  
15. The Consent Order, which is dated 29 July 2014, records the service of t he 
Registration Orders on Mrs Christofi, and agrees to vacate the hearing on 30 
July. It then provides that "the Defendant shall notify the Court and the 
Claimant  no later than 4pm on 30 September 2014 if she has filed an appeal 
against the Registration Or ders" (my emphasis). If such notification is given 
then the hearing of the application to make the Interim Charging Orders final 
will be adjourned until after the appeal is determined; if not, the Bank may 
apply to have the hearing relisted for the first a vailable date after 30 October 
2014.  
16. The Consent Order is plainly directed at the practicalities of re -fixing the 
vacated hearing of the application to make the charging orders final. The 
timetable would depend upon whether or not Mrs Christofi had appeal ed the 
Registration Orders. It seems to have been envisaged that the court office 
would probably be fixing dates at least a month ahead, so that if the Bank 
wanted to have a chance of getting a hearing in November or December 2014, 
those responsible for th e listing would need to be told by 30 September at the 
latest that there had been no appeal. If the Bank's solicitors then applied for a 
date, they would be in a position to fix a hearing for some time after 30 
October.  
17. At first sight, the requirement to notify the Bank of the filing of the appeal 
appears otiose, since Charles Russell would know if the appellant's notice had 
been served on them before 4pm on 11 September. However, Charles Russell 
would not know that Fletcher Day had confirmed to the releva nt court office 
by the agreed date whether or not an appeal was pending, unless they were 
told. Since they were the party responsible for re -fixing the date for the 
hearing to make the charging orders absolute, a requirement that they be 
copied in to the r elevant correspondence with the court would save them 
having to make their own inquiries, which might cause further delay.  
18. Whatever the thinking behind it, the agreement was to notify the Bank if an 
appeal had already been filed . The Consent Order did not  purport to extend 
the time for appealing, and could not reasonably have been interpreted as 
doing so. The evidence of Mr Hill of Fletcher Day is that at the time the 
Consent Order was entered into, and until shortly before 30 September 2014, 
his firm " was working on the basis that the last date for making the Appeal 
was 30 September 2014" . That was a serious mistake.  
19. There was no further correspondence from Fletcher Day until long after the 
time limit for appealing had expired. On 26 September, they wr ote to Charles 
Russell to say that their client's "current instructions are to appeal the 
Registration Order and we have been working to this end" but that Counsel 
was away and that a conference call had been arranged for 29 September. 
They asked for agree ment to "an extension of time in which to issue our 
client's appeal  against the Registration Order until 4pm Friday 10 October 
2014" and said they did not believe the extension would cause any prejudice to 
the Bank, since the case could not be relisted unt il after 30 October in any 
event.  
20. This letter betrayed a number of fundamental misconceptions on the part of 
the writer, not least that the parties had the power to agree to extend time for 
appealing (contrary to the express provisions of CPR 52.6). Charl es Russell's 
response was that their client was agreeable to the "short extension to 10 
October 2014 requested regarding the deadline for your client to inform us of 
any appeal  of the Registration Order to enable your client to take Counsel's 
advice" (my e mphasis). The solicitor at Charles Russell appears not to have 
applied her mind to the question whether time for appealing had already 
expired, because the letter would not have been written in those terms if she 
had. In any event, presumably because the a greement did not go as far as they 
wished, Fletcher Day took steps to file the appellant's notice with the Court on 
30 September. They were told by the Court office, correctly, that they were 
out of time. The time taken up in seeking to resolve the questio n whether they 
needed to formally apply for permission to appeal out of time led to the 
appellant's notice being served on 3 October, the next working day.  
21. It was readily apparent at the hearing of this matter on 26 March 
 2015,
  
nearly six months later, that it would be impossible for the Court to d etermine 
the substantive appeal within the allotted time; Mrs Christofi was not available 
for cross -examination and there was no order requiring her attendance. It is 
unusual for the Court to be asked to determine a dispute about the genuineness 
of a signa ture in the absence of expert evidence. In such circumstances, it 
would be essential for the Court to hear, see and evaluate the evidence of the 
key witness of fact. However, before one even gets to the merits of the 
substantive appeal there are two prelim inary issues that have to be determined, 
namely:  
i) Does the court have the power to extend time for appealing?  
ii) If it does, should the court extend time in this case?  
22. The first of these issues is plainly one of general importance; moreover, it 
appears to have been the subject of conflicting decisions by this Court. In the 
light of this, it is possible that the matter may require resolution by the Court 
of Appeal (which would be empowered to refer the matte r to the CJEU if it 
considered it appropriate to do so). Therefore, both counsel proposed, and I 
agreed, that the sensible course would be for me to determine the two 
preliminary issues, and to leave over any decision on the merits of the 
substantive appea l to abide the outcome of any appeal from this judgment.  
Question 1: Does the Court have the power to extend time for appealing?  
23. The starting point in interpreting the provisions of Article 43(5) of the 
Judgments Regulation must be the policy underpinning  the Regulation and its 
predecessors: see e.g. Case 148/84 Deutsche Genossenschaftsbank v SA 
Brasserie du Pecheur  [1985] 3 ECR 1987 at [16] and [17], in which it was 
established that the Brussels Convention established an autonomous and 
complete system for  the recognition and enforcement of judgments, including 
for appeals , which excludes the possibility of any separate challenges to an 
enforcement order under domestic law. Thus third parties affected by the 
foreign judgment could not be granted a right und er the domestic law of the 
country of enforcement to appeal against its registration, as the only person 
granted such a right under the Convention is the defendant. Such a third party 
could only avail himself of any domestic remedy available at the stage o f 
execution of the judgment or order.  
24. The Preamble to the Brussels Convention refers to the undertaking by the 
parties to the Treaty establishing the European Economic Community " to 
secure the simplification of formalities governing the reciprocal recogni tion 
and enforcement of judgments of courts or tribunals " and to the need " to 
introduce an expeditious procedure for securing the enforcement of 
judgments, authentic instruments and court settlements ". This policy of 
simplicity and swiftness is reflected i n the second Preamble to the Judgments 
Regulation which recognizes that differences between national rules governing 
recognition of judgments hamper the sound operation of the internal market. It 
states that provisions to " simplify the formalities with a v iew to rapid and 
simple recognition and enforcement of judgments from Member States bound 
by this Regulation are essential ".  
25. The Preamble goes on to explain how it is envisaged that this policy will be 
implemented in paragraphs 17 and 18:  
"(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 a fter purely formal checks of the document 
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 mea ns 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…"  
26. It follows that a balance must be struck between the right of the defendant to 
challenge the recognition order by appeal on one of the limited grounds 
permitted by the Regulation, and the need for expedition. That balance is 
struck in Article 43(5) which provides that:  
"An appeal against the declaration of enforceabilit y 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."  
27. The language used ("is to be lodged" and "shall be two months") indicates that 
the time limits set are intended to be m andatory, which would accord with the 
underlying policy that enforcement should be rapid, and thus that there should 
be a limited (and relatively short) time for appealing. However it was 
recognized that a defendant domiciled in a Contracting State other t han the 
State of enforcement may be disadvantaged in preparing a challenge within a 
month, and the draftsman made two express modifications to cater for those 
perceived disadvantages.  
28. First, time does not start to run until there has been actual service  of the order 
for enforcement on the party concerned in person or at his residence. That 
means delivering a copy of the order to a person who is present and 
empowered by law to receive it or, if there is no such person, to a competent 
authority (see the comm entary in the Jenard Report, [1979] O.J. C59). This 
requirement avoids the danger that in consequence of the application of 
domestic rules of service, time for appealing will run out before the defendant 
becomes aware of the registration order.  
29. Secondly, the period for appealing is twice the normal time prescribed – two 
months instead of one. The final sentence makes it clear that those two 
concessions are intended to strike the balance between giving the defendant 
domiciled in another Contracting State a fair opportunity to prepare his appeal 
and the need for uniformity and expeditious enforcement, by negating any 
prospect of a further extension of time to cater for the problems caused by 
distance.  
30. That interpretation of Article 43(5) is consistent with t he Jenard Report, which 
in its commentary upon Article 36 of the Brussels Convention (which is in 
identical terms) states that it draws a distinction between the situation in which 
the prospective appellant is domiciled in the State in which the decision t o 
enforce was given, and the situation in which he is domiciled in another 
Contracting State. It says that in the former situation, (which I shall call 
Category A1) " the period is one month; the moment from which time begins to 
run is determined by the law  of [the State of enforcement] from which there is 
no reason to derogate. " Thus, for example, a person domiciled in England 
would not be able to complain about the impact on the commencement of the 
one month time limit of being served by first class post. In the latter situation, 
(which I shall call Category B) the period is two months, and runs from the 
date when the decision was served either on the party in person or at his 
residence:  
"the purpose of this rule, which derogates from some national laws, i s to 
protect the respondent and to prevent his being deprived of a remedy because 
he had not been informed of the decision in sufficient time to contest it. No 
extension of time may be granted on account of distance, as the time allowed 
is sufficient to en able the party concerned to contest the decision, if he is so 
minded. " 
31. The argument that by excluding the possibility of an extension of time only on 
grounds of distance, the draftsman has envisaged an extension being granted 
for other reasons makes no sense in the light of those underlying policy 
considerations and the explanation given in the Jenard Report. The judgment 
debtor domiciled in the State of enforcement should have no need of an 
extension of time, and is bound by the rules of that S tate regarding service. A 
person domiciled in a different EU Member State from the State of 
enforcement is being afforded a more generous time for appealing in order to 
cater for any disadvantages caused by his being domiciled elsewhere. If he 
cannot obtai n a further extension on grounds of distance, and time cannot run 
against him without his knowledge, then it would seem perverse to allow a 
further extension on other grounds. Such a person is already considered to be 
adequately protected against the poten tial unfairness of a tight mandatory 
deadline for appeal.  
32. The real problem is that Article 43(5) does not expressly cater for the position 
of a defendant who is domiciled outside the EU altogether. On the face of it, 
one might expect such a party to suffe r from the same potential disadvantages 
(and thus to be put in at least the same position) as a party domiciled in a 
different Contracting State. However, on the face of it, the Regulation treats 
such a person as subject to the same rules and deadlines as a person domiciled 
in the State of enforcement. Jenard says this:  
"If the party is domiciled outside the Community, the period within which an 
appeal may be lodged runs from the date when the decision is served or is 
deemed to have been served according t o the law of the State in which the 
decision was given. In this case, the period of one month may be extended on 
account of distance in accordance with the law of that State."  
33. Mr Warents submitted that this clearly indicates that a non -EU domiciliary is 
to be treated as subject to the same one month time limit which applies to a 
party domiciled in the State of enforcement, rather than the two month limit 
applicable to those domiciled in other EU Member States, unless that rule is 
modified by domestic law. T hus rather than being in a completely independent 
category, Category C, or being treated as falling into Category B by analogy, 
such a person falls into a sub -category of Category A (Category A2). I agree 
with that analysis.  
34. It is envisaged by Jenard that  the procedural rules of the State of enforcement 
can be used to extend time so as to cater for the disadvantages suffered by 
such a person on account of distance. It is not easy to discern from the 
language of the Convention or Judgments Regulation where that power comes 
from. It appears to emanate from the fact that the last sentence of Article 
43(5), which precludes extensions of time on grounds of distance, expressly 
applies only to domiciliaries of other Convention States, for the reasons stated 
in the  Jenard Report. Jenard appears to infer from this limitation (and the 
reasons justifying it) an acceptance in principle that, conversely, a State is 
permitted to legislate for an extension of the one -month period to cater for the 
potential disadvantages th at distance would cause for a party domiciled 
outside the EU.  
35. Mr Warents submitted that once it is conceded that there is a power to extend 
time for some persons falling within Category A, there is nothing in the 
Regulation itself to draw a distinction be tween different persons falling into 
that category, let alone between persons within Category A and persons within 
Category B. Thus, by necessary implication, there must also be a power to 
extend time for persons subject to the two month time limit, althou gh not on 
grounds of distance. It seems to me that this argument suffers from a false 
logic, because the initial premise that all persons falling in Category A are to 
be treated alike is not established. Indeed, Jenard implies the reverse, by 
stating that there is no reason to derogate from domestic rules of service in the 
case of persons domiciled in the State of enforcement , i.e. those falling within 
Category A1. That suggests there may be a reason to derogate from those rules 
in respect of persons domici led elsewhere (whether within or outside the EU); 
hence the express derogations provided for in a Category B case and the 
implicit right to derogate in a Category A2 case. Mr Warents contended that it 
is the language of the Regulation, not the commentary i n Jenard that matters; 
however, the latter authoritatively informs the interpretation of the former.  
36. Those who drafted the Judgments Regulation (and the Conventions that 
preceded it) were concerned to ensure that the right of appeal is not unfairly 
impede d, or rendered nugatory, by the defendant's distance from the State of 
enforcement. Plainly that concern would not apply to parties who are 
domiciled in the State of enforcement; they can have no excuse for not 
meeting the one month time limit on grounds o f distance. Parties domiciled 
elsewhere in the EU are expressly catered for and need no further concessions. 
Jenard envisages that the State of enforcement may ameliorate the 
disadvantages for non -EU domiciliaries to the extent of providing for 
extensions of the one month time limit on account of distance. How such 
provision is made is a matter for the State concerned. However, it cannot be 
inferred that each State of enforcement has a free rein in granting extensions 
of time to such defendants because that  would completely undermine the 
policy underlying the Convention and the Judgments Regulation spelled out in 
Brasserie du Pecheur , and it would be inconsistent with the system laid down 
for enforcement and appeals against enforcement orders being self -contained. 
The power to extend time in a Category A2 case must be exercised 
consistently with the policy in the Convention and the Judgments Regulation.  
37. In my judgment, if that State were to make rules putting such a person in the 
same position as someone fal ling into Category B, it would not be acting 
contrary to the spirit and intention of the Brussels Convention or the 
Judgments Regulation. On the contrary, it would achieve a desirable degree of 
uniformity and certainty. In England and Wales, the Rules Comm ittee has 
exercised that power by giving persons domiciled outside the EU the same 
time for appealing against the enforcement order as persons domiciled 
elsewhere in the EU. Thus CPR 74.8(4)(a)(ii) draws no distinction between 
persons domiciled in other St ates within or outside the EU; the time limit is 
two months from the date of service. That is deemed to be an adequate time 
for filing notice of appeal.  
38. However the rules also specifically provide that if the judgment debtor is not 
domiciled within the EU , if "an application to extend time for appealing is 
made within two months of service of the registration order, the court may 
extend the period for filing an appellant's notice against the order granting 
registration, but not on grounds of distance " (CPR  74.8(3)). This express 
power to extend time for appealing is confined to persons domiciled in a non -
EU State, which on the face of it (and consistently with the language of the 
Judgments Regulation) implies that the Rules Committee envisaged that there 
should be no such power in respect of persons domiciled within this 
jurisdiction or elsewhere within the EU.  
39. Ms Lamont, on behalf of the Bank, submitted that this betrayed some 
confusion on the part of the Rules Committee, and that consistently with the 
Jenard Report, there should be no such prohibition: on the contrary, the rule 
should have permitted  a further extension on grounds of distance. However, if 
the extension of the time limit from one to two months is perceived to 
adequately cater for the disadva ntages caused by distance, as I consider to 
have been the intention, the prohibition of a further extension on those 
grounds makes complete sense. It is the fact that the rules envisage that a 
further extension may be permitted on other  grounds that causes  a difficulty. 
The Jenard Report only expressly refers to an extension of time on grounds of 
distance. The question whether the Regulation implicitly permits an extension 
on other grounds is a matter to which I shall return when considering the 
previous au thorities. At this juncture, I simply point out that extending the 
time limit does not cater for the other potential disadvantage caused by 
domestic rules of service that the Regulation has expressly addressed in the 
case of persons domiciled elsewhere in the EU, as time could still start to run 
against a non -EU defendant at a time when he is unaware of the Registration 
order.  
40. Thus, if the matter were free from domestic or EU authority I would interpret 
the time limit applicable to someone in Mrs Christofi 's position as mandatory 
and strict, with no general discretion to extend time. The same would be true 
of a person domiciled in the state of enforcement (a Category A1 person). He 
will be taken to have agreed to be bound by the procedural rules concerning 
service of documents in the country of his own domicile. The distinction in 
treatment between these two categories is clearly drawn in the wording of the 
Brussels Convention and the Judgments Regulation, and the underlying policy 
behind the more favourable  treatment afforded to someone domiciled in 
another Contracting State is explained by Jenard. The implicit power to extend 
time for appealing in the case of persons domiciled outside the EU on grounds 
of distance, referred to in the Jenard Report, recogniz es that they may also be 
at a disadvantage by reason of distance and enables Contracting States, if they 
wish, at least to allow such persons the same period for appealing as is 
expressly afforded to those domiciled elsewhere in the EU. The power to 
extend  time must be confined to Category A2 defendants, because fairness to 
the other categories of defendant is already sufficiently catered for.  
41. I would add just one caveat. Even when there is a mandatory time limit for 
appealing under a domestic statute, and  no power to extend time, this 
jurisdiction recognizes a limited class of case in which the courts may 
entertain an out of time appeal. That is where the application of the time limit 
would impair the very essence of the right of appeal, and strict adheren ce to it 
would infringe Article 6 of the European Convention on Human Rights: R 
(Adesina and Baines) v The Nursing and Midwifery Council , [2013] EWCA 
Civ 818 , following the views expressed by Lord Mance in Lukaszewski and 
Pomiechowski v Poland  [2012] 1 WLR 1604  at [33] -[37]. The discretion in 
the court to ameliorate the absolute approach in exceptional circumstances still 
requires the appellant " personally to have done all he can to bring the appeal 
timeously ." In Adesina and Baines  Maurice Kay LJ gave the examples of a 
person who falls serious ly ill immediately upon receipt of the decision and 
remains in intensive care whilst the time limit expires, or a case in which the 
relevant document is sent by post and never arrives, but is deemed served on 
the day after it was posted.  
42. In my judgment, b y parity of reasoning, a similar exception would probably 
apply to the mandatory time limits under the Regulation, since the underlying 
policy is designed to be compatible with Article 6. However, the present case 
is far removed from the situation in which  such a limited exception could 
arguably apply.  
43. With that provisional view in mind, I turn to the previous European and 
domestic case law. The first case in time is Case 145/86 Hoffmann v Krieg  
[1988] ECR 645 ("Hoffmann"). An order had been made by a German court 
for a husband to make maintenance payments to his wife as a separated 
spouse. He then obtained a decree of divorce in the Netherlands. Thereafter, 
the wife registered the order for maintenance in the Netherlands. Th e husband 
was served with notice of the enforcement order, but did not appeal. At a later 
date, the wife obtained an order attaching his earnings and the husband sought 
to have that order discharged on grounds that he could have raised on an 
appeal against  the enforcement of the German order. The CJEU was asked, 
among other matters, whether the scheme of the Brussels Convention 
precluded him from pleading those matters, and answered that question in the 
affirmative.  
44. The court drew a distinction between enf orcement, which was governed by the 
Convention, and execution of a foreign judgment or order once an order for its 
enforcement had been obtained, which was a matter for the domestic law of 
the State of enforcement. However it held that the procedural rules  of the State 
in which enforcement is sought may not impair the effectiveness of the 
scheme of the Convention as regards enforcement orders. Allowing a person 
who had not appealed against enforcement to challenge the execution of the 
order would be tantamo unt to again calling into question the enforcement 
order after the expiry of the strict time -limit laid down by the second 
paragraph of Article 36 of the Convention, and would thereby render that 
provision ineffective. It added, at [31]:  
"in view of the m andatory nature of the time -limit laid down by Article 36 of 
the Convention, the national court must ensure that it is observed."  
45. That case therefore lends support to the proposition that the time limit 
applicable to someone in Category B is strict. It can not be circumvented by the 
application of domestic procedural rules, and the national court must ensure its 
observance. Those dicta are inconsistent with there being any discretion to 
extend time.  
46. The next case chronologically C -220/95, Van den Boogaard v Laumen , ("Van 
den Boogaard") was relied upon by Mr Warents, though Ms Lamont submitted 
it was either neutral or supported the Bank's position. This case again 
concerned a matrimonial dispute. The issue referred by the Netherlands court 
to the CJEU was whether a decision of the English High Court in proceedings 
for ancillary relief was to be classified as "a judgment given in matters relating 
to maintenance" or "a judgment given in a matter relating to rights in property 
arising out of a m atrimonial relationship". The Court noted in paragraph [16] 
that it had been asserted that the husband had lodged an appeal after the two -
month period laid down in Article 36 of the Brussels Convention for appealing 
against enforcement. It said that did no t affect its jurisdiction to make a 
preliminary ruling on the issues referred to it by the Netherlands court. It was 
solely a matter for the national court to determine the need for a preliminary 
ruling and the relevance of the questions submitted to the C JEU.  
47. I cannot see how that case provides any support for Mr Warents' contention 
that the court in the State of enforcement has a power to extend the time for an 
appeal. The CJEU was dealing with the contention that it would be pointless 
for it to rule on the reference because the appeal was out of time. It took the 
view that it would be inappropriate for it to question why the national court 
sent it the reference, or to refuse to answer the questions on the basis that the 
answers would be academic. The aut hors of Briggs and Rees, Civil 
Jurisdiction and Judgments (5th Edition) suggest in a footnote on page 710 that 
"it appears from this case that compliance [with] and violation of the time 
limits is a matter for the national court and not for the Court of Ju stice". I 
agree that this is a legitimate inference to draw from the reasoning deployed in 
paragraph [16]. The reasoning is neutral on the issue that I have to decide. 
There is no underlying assumption that the national court was not bound to 
apply the tim e limit if it concluded that the appeal was out of time.  
48. The next case is the first of the English decisions, TSN Kunstoffrecycling v 
Jurgens (unreported, 16 February 2001), ("TSN") which was concerned with 
the enforcement in England of a default judgment  entered in Germany against 
a Dutch national resident (and presumably domiciled) in England. The 
defendant had appealed against the registration of the German judgment on the 
same grounds that Mrs Christofi wishes to raise in the present case, namely, 
that it was entered in default of appearance in circumstances in which he was 
not duly served with the proceedings and had insufficient time to arrange for 
his defence. He made an application to the court appealing against the 
enforcement order within a month of service on him of the enforcement order. 
However in consequence of the provision of wrong information by the court to 
his solicitors, the wrong fee was enclosed, and the stamping and issue of the 
application was delayed until after the correct fee was s ent. By then the 30 
days for appealing had expired (this must have been a category A1 case, 
because if the defendant had still been domiciled in the Netherlands, the time 
limit would have been two months). The respondent opportunistically argued 
that the a ppeal was out of time and there was no power to extend the time 
limit. No point was taken in relation to the timing of service of the appellant's 
notice.  
49. Jack J. held that on the true construction of the applicable domestic procedural 
rules, the applicati on was made within time, because the application notice 
had been received by the court within the deadline (CPR 23.5), so the payment 
of the wrong fee was irrelevant. However, he went on to observe, obiter , at 
[17] that if the eventual date of issue of the  application was the relevant date, 
the appellant would have been in some difficulty. He referred to Hoffman  and 
said that whilst the court in that case was not directly concerned with the 
question whether time could be extended by a national court under i ts own 
procedures, the statement in paragraph [31] of that judgment (which I have 
quoted above) is in clear terms. It appeared consistent with the principle of 
exclusion of national law as a way of surmounting the provisions of Article 36 
of the Brussels C onvention (citing Brasserie du Pecheur ) and was also 
supported by the Jenard Report. He said that the argument that, because the 
Article expressly precludes an extension of time on account of distance, it 
allows by implication extensions for other reasons in accordance with national 
law, would seem a bad one. If his "tentative view" was right, there is no power 
to grant such an extension.  
50. The case went on appeal on a different point to the Court of Appeal [2002] 1 
WLR 2459 , which upheld Jack J but said nothing of any relevance to the 
issues I have to determine. The reasoning in TSN  which led to Jack J's 
"tentative view" is consistent w ith the reasoning that I have deployed above.  
51. The case on which Mr Warents understandably placed most reliance, Citibank 
v Rafidian Bank and another  [2003] 
 EWHC
  1950 (QB) ("Citibank") was a 
category A2 case involving an Iraqi Bank adversely affected by the sanctions 
imposed after the invasion of Ku wait on 2 August 1990. The English court had 
granted an order for the enforcement of a judgment of the court of Amsterdam 
relating to a debt falling due under a letter of credit. The enforcement order 
was served on 21 March 2002 and the two months for appe aling expired on 21 
May that year, but the appellant took no steps to seek an extension of time for 
appealing until 13 June 2003. The application was refused by the single judge 
on paper, on the basis that there was no jurisdiction to grant the extension o f 
time. The appellant renewed the application to an oral hearing before 
Tugendhat J. who decided that there was a power under CPR 74.8(3) to extend 
time otherwise than on account of distance, even if the application was made 
after the time for compliance h ad expired, but declined to exercise it.  
52. Despite the fact that the appellant and the respondent were each represented by 
distinguished leading counsel from the Commercial Bar, none of the earlier 
authorities to which I have referred was cited to the judge . The respondent's 
counsel appears to have confined himself to citing the commentary in the 
notes in the White Book, which admittedly make some reference to the 
underlying policy of avoiding derogation from the Convention's object of 
establishing a simple and rapid machinery for the enforcement of judgments of 
other Member States (see the judgment at [19]).  
53. No criticism is to be attached to counsel for the failure to cite TSN,  which was 
(and is) unreported; in 2003 such judgments were by no means as easy t o find 
as they are today. Moreover, Jack J's view was obiter  and, as he himself 
characterised it, "tentative"; the subsequent decision of Tugendhat J could not 
be regarded as per incuriam  because it did not pay regard to it. The failure to 
find and cite th e European decisions, particularly Hoffman , is a little more 
difficult to explain, but in the context of an argument relating to a case falling 
within CPR 74.8 (3) is perhaps understandable, because that rule expressly 
provides that there is a power to ext end time in a case where the judgment 
debtor is domiciled outside the EU, at least if the application is made within 
two months of service of the registration order. Thus the issue before the court 
was the relatively narrow one of whether that power could be exercised if it 
were invoked after the two months had expired, or, to put it another way, 
whether the time for making the application could be extended under CPR 
3.1(2)(a) or whether the Brussels Convention "otherwise provided".  
54. The judge was alive to the fact that three classes of potential appellant are 
identified in CPR 74.8, (and its predecessor under the RSC,) but only two 
classes are specifically referred to in Article 36 of the Brussels Convention. At 
[22] he rightly treate d persons domiciled outside the EU as being subject to 
the one month time limit, and said it was not clear why they should have less 
than two months – an observation with which I respectfully agree. He then 
said that if the Convention were to be construed so strictly that the national 
rules governing procedure permitted no extension of time to be granted after 
the two month period granted by Part 74.8(3), it would also be for 
consideration whether Part 74.8(3) were not itself outside what is authorised 
by A rticle 36. Indeed, Article 36 does not contemplate that such parties should 
have two months in the first place.  
55. Were it not for the Jenard Report, that would be fair comment; but the Jenard 
Report (to which the judge appears not to have been referred) mak es it clear 
that Article 36 is to be interpreted as permitting the one month period to be 
extended on grounds of distance, albeit only in a Category A2 case – i.e. the 
only situation not already expressly catered for in which distance might pose a 
practica l impediment to appealing within a month. Jenard is silent as to how 
long such an extension might be, but there could be no complaint about a rule 
or law permitting an appeal to be brought within two months to bring 
Category A2 defendants into line with de fendants domiciled elsewhere in the 
EU. That two month period for appealing is both fair and compatible with 
Article 6 ECHR, as Tugendhat J rightly went on to find (at [47)].  
56. However, Jenard does not go so far as to contemplate an extension of time, let 
alone an extension beyond two months, on any other grounds, and thus the 
point made by Tugendhat J about the compatibility of CPR 74.8(3) with the 
Convention and the Judgments Regulation merits further examination. If there 
were a general power to extend ti me for making the application even after the 
two months granted to a Category A2 defendant had expired, there would be 
little or no point in the Rules Committee expressly stipulating that the 
application must  be made before the two months has expired, a po int made 
forcefully by Ms Lamont. Moreover, an unfettered power to extend time in a 
Category A2 case, especially one exercisable after the time limit had expired, 
would undermine the integrity of the scheme of the Convention and 
Judgments Regulation for th e reasons I have already given.  
57. As I have already observed, the power of the State of enforcement to extend 
the one month time limit on grounds of distance that Jenard accepts to exist in 
a Category A2 case has already been exercised in this jurisdiction by making 
provision for a two month time limit for appeal in CPR 74.8(4)(a)(ii). 
However, that provision does not specify that the two months runs from 
personal service or service at the defendant's place of residence (indeed, that 
requirement has to be re ad into the rules in the case of an EU domiciliary). 
Nor does it draw any distinction between EU and non -EU domiciliaries. It is 
CPR 74.8(3) which caters specifically for persons falling within Category A2. 
So, are there any grounds compatible with the pol icy underlying the 
Judgments Regulation on which an extension of the two month period could 
be granted to non -EU domiciliaries other than distance?  
58. The key to answering this question may lie in the recognition underpinning the 
first of the Category B modi fications that domestic rules of service can operate 
in such a way as to deprive someone outside the jurisdiction of, or unfairly 
impair his right of appeal. The policy behind the requirement of actual service 
on an EU domiciliary, in person or at his resi dence, before time for appealing 
can start to run against him, is clearly spelled out by Jenard. It is to protect the 
defendant and to prevent his being deprived of a remedy because he had not 
been informed of the decision in sufficient time to contest it.  Jenard does not 
expressly address the disadvantages that domestic rules of service may have 
for a non -EU domiciliary, but they are obviously the same as for someone 
domiciled in another Contracting State. Such a person cannot be said to have 
accepted any potential disadvantages caused by domestic procedural rules of 
service by choosing to make his home permanently in the State of 
enforcement.  
59. Suppose that a non -EU domiciliary does not in fact have the sufficient time in 
which to appeal envisaged by the Re gulation, because despite being deemed 
served under the procedural rules of the State of enforcement, he is unaware of 
the enforcement order. It must be at least arguable that an extension of time 
may be granted to him by that State without violating the p olicy underlying 
the Judgments Regulation, at least if the extension of time does no more than 
put him on the same footing as someone domiciled in another EU State by 
allowing him two months from the date of actual service of the enforcement 
order on him i n person or at his residence. The same process of reasoning 
might also justify extending time so as to allow two months from the date on 
which he was actually notified of the order. In principle there seems to me to 
be no reason to justify Category A2 defe ndants, who may be domiciled as far 
away as Australia, being treated less advantageously than someone domiciled 
in another part of the EU.  
60. Therefore, the provision in CPR 74.8(3) for an extension of time in a Category 
A2 case for reasons other than distan ce may have been designed to enable the 
court to put the non -EU domiciled defendant on the same footing as an EU 
defendant in circumstances in which he was deemed to have been duly served, 
but was not informed of the enforcement order in sufficient time to  contest it. 
If that analysis is correct, and the Regulation is to be interpreted as allowing 
the State of enforcement to equate the position of all parties domiciled outside 
its jurisdiction for the purpose of appealing, then there is a powerful argument 
that in principle there is no reason to compel the appellant to seek the 
extension of time within two months of service, because that time limit might 
itself operate unfairly if the manner of service did not bring the enforcement 
order to his attention unt il after it had expired.  
61. It is arguable on the basis of the reasoning deployed by the CJEU in Verdoliva 
v JM Van der Hoevan,  discussed in paragraphs 65 -70 below, that because the 
Regulation does not stipulate the means of service in a non -EU case, certain ty 
requires that in such a case the period for appealing must start to run from the 
date of due service under domestic rules, and the date when the defendant 
finds out about the enforcement order is irrelevant. Therefore there is no 
power to grant any furt her extension of time, and CPR 74.8(3) does indeed go 
beyond what is permissible. Whilst I acknowledge the force of that argument, 
Jenard acknowledges that the Regulation does distinguish between persons 
domiciled in the State of enforcement and those domi ciled elsewhere, and it 
does so for good reason. The power to extend time is confined to Category A2 
cases, and it seems to me that in principle the envisaged power to ameliorate 
the harshness of the one month limit in such a case must be exercised in a wa y 
that is compatible with the underlying policy that led to the express 
concessions given in the Convention and the Judgments Regulation to persons 
domiciled elsewhere in the EU.  
62. I would therefore favour an interpretation of the Regulation which allowed t he 
State of Enforcement to modify its domestic procedural rules to prevent a non -
EU defendant from being deprived of a remedy because he had not been 
informed of the enforcement decision in sufficient time to contest it within the 
one month, or in the case  of this jurisdiction two months, lawfully provided 
for. However it seems unlikely that the power could be legitimately exercised 
in a manner which went beyond the concessions expressly made in the 
Regulation itself to persons domiciled in other Contractin g States (subject only 
to the caveat in paragraph 41 above, which applies to all defendants 
irrespective of where they are domiciled).  
63. Had Tugendhat J been shown Hoffman  and the Jenard report, and addressed 
on the need to strike a balance between maintain ing a uniform procedure for 
rapid enforcement and ensuring that the defendant is given a fair opportunity 
to appeal (which depends on his having knowledge of the enforcement order 
and sufficient time to initiate the appeal procedure) he may have reached a 
different conclusion. However he could still have reached the conclusion that 
he did on the specific issue that he had to decide, by deploying slightly 
different reasoning. It is unnecessary for the purposes of this appeal for me to 
decide whether Tugendha t J's conclusion in Citibank  was right, since this case 
is not concerned with a Category A2 situation or with the interpretation and 
effect of CPR 78.4(3). What does seem clear to me is that the issue before 
Tugendhat J was confined to the ambit of that pr ocedural rule and whether the 
terms of the Convention compelled the conclusion that applications for a 
further extension of time could only be brought within the period allowed for 
appealing against the enforcement order.  
64. Whatever the scope of the residua l power to extend time in a Category A2 
case, Citibank  is not authority for the proposition that the time limits imposed 
by the Convention and the Judgments Regulation in Category A1 and 
Category B cases are not mandatory. It was not necessary for Tugendha t J to 
make such a finding in order to decide the narrow issue in the case. However, 
if and to the extent that Tugendhat J's finding at [23] that Article 36 of the 
Convention does permit an extension of time to be granted otherwise than on 
account of dista nce is to be read as extending to cases outside Category A2, he 
was clearly wrong.  
65. Case C -3/05, Verdoliva v JM Van der Hoevan , ("Verdoliva") was decided by 
the CJEU on 16 February 2006. The issue in that case was whether the time 
for appealing against an order for enforcement in a Category 1A case ran from 
the date of due service under domestic rules, or the date on which the 
prospective appellant was notified of the existence of the enforcement order. 
The Court ruled firmly in favour of the former.  
66. The judgment creditor obtained a judgment in the Netherlands which he 
sought to enforce in Italy, which was the defendant's place of domicile. An 
initial attempt to serve the enforcement order at the defendant's place of 
residence in Italy was unsuccessful  because he had moved. Under Italian 
procedure, in those circumstances service can be duly effected by lodging a 
copy in the town hall of the defendant's last place of residence, and by the 
bailiff attaching another copy to the notice board there. Mr Verdo liva sought 
to appeal after the one month prescribed for appealing had expired. He 
contended that service was ineffective, because he had not been personally 
served and the order had not been lodged at the town hall. The Italian court 
held that the appeal was nonetheless time -barred because it was brought more 
than 30 days after he had been served with a document notifying him of the 
existence of the enforcement order.  
67. The CJEU held that because Article 36 of the Brussels Convention does not 
include any ex press condition for validity of service save where the party 
against whom enforcement is sought is domiciled in another Contracting State, 
its provisions must be interpreted in the light of the scheme and aims of that 
Convention. After referring to the aim s of the Convention and to the fact that 
it is not permissible to achieve them by undermining the right to a fair hearing, 
the Court referred to the time limit of one or two months for appealing 
depending on whether the appellant is domiciled in the Contra cting State in 
which the decision authorising enforcement was given. It said (at [32]):  
"That time limit is of a strict and mandatory nature (Case 145/86 Hoffmann 
[1988] ECR 645, paragraphs 30 and 31). " 
It then referred to the fact that, by contrast, the Convention imposes no time -
limit on an appeal by the party who has been refused enforcement.  
68. In considering whether the mere fact that the prospective appellant has notice 
of the decision will suffice in a case where service is defective, the CJEU 
acknowle dged that the requirement that the decision authorising enforcement 
be served has the dual function of protecting the rights of the party against 
whom enforcement is sought and allowing, in terms of evidence, the strict and 
mandatory time -limit for appeali ng to be calculated precisely. It said that 
double function, coupled with the aim of simplification of the formalities to 
which enforcement of judicial decisions delivered in other Contracting States 
is subject, explains why the Convention makes transmissi on of the decision 
authorising enforcement to the party against whom enforcement is sought 
subject to procedural requirements that are more stringent than those 
applicable to transmission of that same decision to the applicant ([34] -[35]). If 
the sole issu e were whether the enforcement order had come to the attention of 
the other party, it would render the requirement of due service meaningless 
[35]. Moreover it would make the exact calculation of the time limit under 
Article 36 more difficult, thus thwarti ng the uniform application of the 
provisions of the Convention [36].  
69. Thus the court concluded that Article 36 was to be interpreted as requiring due 
service  of the decision authorising enforcement in accordance with the 
procedural rules of the Contracting  State in which enforcement is sought. It is 
clear that the court envisaged that in a Category A1 case, this could include 
some form of substituted service of the kind provided for in Italy, rather than 
personal service or service at the party's place of r esidence. As in Van den 
Boogaard , the CJEU left it to the national court to decide whether in fact there 
had been compliance with the domestic rules of procedure.  
70. The whole rationale of that decision depends on the time limit for appealing 
being strict an d mandatory, as the CJEU said in terms that it was, endorsing 
the approach in Hoffman . That was the reason why it was so important that the 
starting point for time to run was clearly defined, and that the same rule should 
be applied consistently throughout  the EU. In my judgment Verdoliva  
provides strong support for the proposition that there is no general power to 
extend time – because if such a power existed, the ability to calculate the 
period with precision would not assume such fundamental importance.  
71. That view was shared by Slade J in Taylor -Carr v Howkins & Harrison LLP  
[2014] 
 EWHC  3479 (QB) ("Taylor -Carr"). That case concerned a French 
judgment for fees said to be owing to the respondent, a firm of estate agents. 
Again it was a category A1 case, with a one -month time limit, as the appellant, 
Mrs Taylor -Carr, was domiciled in England. The appellant was served with 
the enforcement order on 10 June 2013 but the appeal was only issued on 17 
February 2014, some eight months o ut of time. Mrs Taylor -Carr was 
unrepresented. Counsel for the respondent very properly referred the judge to 
all the authorities that I have considered thus far, apart from Van den 
Boogaard , though he does not appear to have specifically addressed the Jen ard 
Report.  
72. In an ex tempore  judgment that is both clear and concise, Slade J. decided that 
the approach of Hoffman , Verdoliva  and TSN  to the question of whether there 
is a discretion to extend time for an appeal was to be preferred to that of 
Tugendhat J . in Citibank . She said at [25] that whilst Hoffmann  and Verdoliva  
were not directly on point they clearly emphasised the mandatory nature of the 
time limit provisions; and that she preferred Jack J's approach and his view 
expressed tentatively that there is no power to grant an extension of time.  
73. Mr Warents submitted that Slade J provides no in -depth analysis or 
explanation for her failure to follow Tugendhat J's decision, which convention 
required her to follow unless she was persuaded it was "clearly wr ong". He 
also submitted that I should follow the earlier decision in Citibank , as it was 
based on full legal argument from leading counsel and it was a reserved 
judgment. It does not follow from those features that the reasoning in that case 
should be pref erred, especially as the judge was not taken to all the relevant 
authorities. Slade J had the advantage in that respect, though she did not have 
the advantage that I have had of hearing counsel arguing the case on each side. 
However, as I have already said , on proper analysis the decision in Citibank  is 
not necessarily out of line, as it is only what is said at [23] that is potentially in 
conflict with the rationale in other authorities, and even then, only if it is 
interpreted as extending beyond a Categor y A2 case and confirming the 
existence of a general power under the Convention or the Regulation to extend 
time for appealing other than on grounds of distance. V erdoliva,  which was 
decided subsequently to Citibank , and by a higher court, the CJEU, is 
inconsistent with the existence of such a power, as is Hoffmann .  
74. There is no authority directly addressing the issue in a Category B case; 
however the overwhelming majority of the cases (including Hoffman , which is 
a Category B case) support the initial view that I took on the construction of 
the Regulation alone, with the assistance of the Jenard Report, bearing in mind 
the underlying policy considerations. A general discretion to extend time for 
appealing would subvert that policy, introducing uncertainty as  well as 
departing from the intention of creating a uniform and self -contained system 
of speedy and simple enforcement throughout the EU. The time limits were 
designed to strike the necessary balance between effective and speedy 
enforcement and protection of the legitimate rights and interests of the 
defendant.  
75. Category B defendants such as Mrs Christofi have the double protection of a 
requirement of actual service before time starts to run, and twice the normal 
time for bringing their appeal; and those sa feguards are deemed sufficient. 
Category A1 defendants do not generally need those safeguards but, as the 
CJEU makes clear in Verdoliva , they are entitled to insist on due service in 
accordance with the procedural law of their state of domicile which is al so the 
State of enforcement, and time for appealing will only start running once they 
are duly served, irrespective of their state of knowledge. It appears to have 
been left to the Member States to decide whether (and if so, how) to put 
Category A2 defenda nts on exactly the same footing as Category B 
defendants. Whether our domestic procedural rules have gone further in that 
regard than is permissible by the Judgments Regulation, or whether they 
should be interpreted more restrictively in line with its poli cy, are matters for 
another day.  
76. The answer to the first question is therefore that there is no general power to 
extend the mandatory two month time limit for appealing in this case. The 
Court is obliged to enforce that time limit strictly, subject only to the residual 
power to extend a mandatory time limit in the rare case where its application 
would impair the very essence of the right of appeal, and strict adherence to it 
would infringe Article 6 ECHR.  
Question 2: If the Court has such a power, should it be exercised in this 
case?  
77. The domestic case law on relief from sanctions, most notably Denton v TH 
White  [2014] 1 WLR 3926 , does not directly address failure to comply with a 
time limit prescribed by a statute or by a directly applicable EU regulation 
which has the same effect as a statute. I am not persuaded that the guidance 
given in cases concerning non -compliance with a court order or procedural 
direction or with the rules of court pertaining to domestic litigation, including 
appeals, is wholly apposite in this context, though of course it is of some 
relevance. The underlying poli cy considerations in a case such as this, to 
which I have already referred, go well beyond those affecting decisions on 
matters of pure case management.  
78. In the present case, the failure to meet the time limit was serious; this is plain 
when one places the  delay of around three weeks in the context of a two 
month time limit which is twice the time allowed to a party domiciled within 
the jurisdiction and which is regarded, as a matter of policy, as being sufficient 
to safeguard the legitimate interests of a party domiciled elsewhere in the EU. 
The period for appealing is deliberately short. Whilst the delay was nothing 
like as long as it was in Taylor -Carr or Citibank , it cannot be described as 
minor.  
79. Mr Warents contended that the delay has had no practical impact on the 
execution of the judgment, because the Bank had agreed that the hearing of its 
application for the charging orders to be made final would not take place until 
after 30 October 2014, and the consent order provided that the Court would 
not be i nformed whether or not an appeal had been lodged until 30 September 
at the earliest. There was no evidence that the 22 days' delay in appealing 
would have had any impact upon the listing of the hearing to make the 
charging orders final, let alone that it w ould be delayed by three weeks.  
80. That may well be right. However, if the appeal had been brought within time, 
the hearing of the appeal may have been listed earlier than 26 March. Even if 
it could not have been listed earlier, there would have been no nece ssity to 
deal with these preliminary issues, with the substantive appeal being 
adjourned to a later date pending the outcome of any appeal against my 
decision, an inevitable concomitant of the appeal being out of time. All of this 
delay is bound to have a knock -on (and adverse) effect on the Bank's ability to 
enforce its judgment and is directly contrary to the policy underlying the 
Judgments Regulation. It is nothing to the point, though it affords the Bank 
some comfort, that in the meantime its position i s protected to some extent by 
having security in the form of the interim charging orders over Mrs Christofi's 
English properties.  
81. In any event, as the Court of Appeal made clear in Denton v White  at [26], the 
seriousness of a breach or failure to comply w ith an order or rule of court is 
not to be determined exclusively by its impact on the efficient progress of 
litigation (or, by analogy, on the expeditious enforcement of an EU judgment). 
The requirement is that the delay is serious or significant (or both ). I regard 
the delay as serious whether or not it was significant in the sense of making a 
material difference to the date on which the Bank would have had its hearing 
of the application for final charging orders over the property, or the date on 
which th e appeal was listed for hearing.  
82. There was no good reason for the delay, as Mr Warents realistically accepted, 
though he submitted that the muddle by Fletcher Day was a relevant factor at 
the third stage of the analysis when looking at all the circumstanc es and 
determining whether it was fair to grant the extension of time. The Bank's 
opposition to the application for an extension of time cannot be characterised 
as opportunistic; this was no technical slip, and no blame can be attached to 
the Bank or its l egal representatives for what happened. If Mrs Christofi's 
solicitors thought they had until 30 September to file the appeal that still does 
not explain why they apparently left matters until the very last minute.  
83. Although the seriousness of the delay and  the absence of any excuse for it both 
militate strongly against the grant of relief, the Court may nevertheless 
exercise a discretion in favour of an extension of time if in all the 
circumstances the justice of the case requires it. The merits of the unde rlying 
appeal are irrelevant to that consideration, because this is not a case in which 
they are sufficiently clear to justify their being taken into account. So, would 
the justice of the case require an extension of time for appeal if I had the 
power to g rant it?  
84. Mr Warents relied upon R (Hysaj) v Secretary of State for the Home 
Department  [2014] EWCA Civ 1633 , in which the parties had agreed to an 
order adj ourning the application for permission to appeal (which was later 
granted) without also seeking an extension of time for filing the appellant's 
notice, as they should have done. Relief was granted despite a similar period 
of around 3 weeks' delay, for whic h there was no good reason, chiefly on the 
basis that the delay had no significant effect on the proceedings [51]. It was 
also found to be of "critical importance" that the respondent had suffered no 
prejudice (see [53]). However, the exercise of judicial discretion in a given 
case is highly fact -sensitive. Hysaj  was a case in which the point raised on the 
appeal was one of considerable importance not only to the parties but to the 
wider public, permission to appeal had been granted, and where it was clear 
that the respondent was labouring under the same misunderstanding as to the 
effect of the agreed order for an adjournment as the appellant. That was not 
the case here; and unlike Hysaj , this was not a case in which there was an 
understandable but inexcusab le oversight or misapprehension as to what the 
rules required, but a case in which Mrs Christofi's solicitors were not only 
aware of the two month limit for appealing, but initially proposed a consent 
order premised on the correct assumption that time ran out on 11 September 
2014.  
85. Hysaj  was also a case concerning the normal rules pertaining to appeals from 
first instance decisions to the Court of Appeal. There was no background of a 
complex and supposedly self -contained international Treaty or directly 
effective European regulation with the policy of simple, expeditious 
recognition and enforcement of judgments of other Contracting States at its 
heart, a deliberately tight timetable set for appeals on very restricted grounds, 
and a regime that was designed t o strike a fair balance between the rights of 
the judgment creditor and protection of the legitimate interests of the 
defendant. Viewed in that context, there is no obvious justification for 
condoning a three week delay by someone who knows of the existenc e of the 
Enforcement order in ample time to appeal. Indeed, given that the balance 
between the competing interests is already fairly struck by the terms of the 
Judgments Regulation itself, in my judgment any interference by the Court 
with that balance in c ircumstances such as this would be unwarranted and 
unprincipled. It is not good enough to say "there was no harm done" because, 
even if that were true (which it is not) it loses sight of the bigger picture.  
86. For those reasons, even if I had a discretion to  extend the time for appealing, I 
would decline to exercise it in favour of Mrs Christofi. The second 
preliminary issue must also be answered in the negative. It follows that the 
application for an extension of time must be dismissed.  
Postscript  
In the light of the provisions of CPR 52.13 it is debatable whether I have 
power to grant permission to appeal against this judgment, even though this is 
not a typical "second appeal" situation because the original order was made 
"without notice," and the only inter parties contested hearing has been the 
hearing before me. I understand that Mr Warents has taken the pragmatic view 
that he should apply to the Court of Appeal for permission to appeal. I would 
unhesitatingly have granted permission to appeal ha d I the power to do so. 
Despite the fact that I would have exercised my discretion against Mrs 
Christofi if I had the discretion to extend time, I consider that there is an 
important point of principle or practice involved in this case. Moreover, 
although I have sought to reconcile the decision in Citibank, on the one hand, 
with the tentative view expressed by Jack J in TSN  and the decision of Slade J 
in Taylor -Carr on the other, it is at least arguable that the reasoning in those 
decisions is in conflict. Indeed the question whether CPR 52.13 applies in this 
specific context is in itself an important point of practice that has not yet been 
decided .