Neutral Citation Number: [
 2016]
  
EWHC
  
1442
  (QB) 
  Case No: FJ65/1 5 
IN THE HIGH COURT OF JUSTICE  
QUEEN'S BENCH DIVISIO N 
 
  Royal Courts of Justice  
Strand, London, WC2A 2L L 
  22 June 
 2016 
B e f o r e :  
THE HONOURABLE MR JUSTICE PICKE N 
____________________  
Between:  
 
 CYPRUS POPULAR BANK PUBLIC Co. 
LTD.  
under resolution pursuant to the provisions 
of the Resolution of Credit and Other 
Institutions Law 3013 N. 17(I)/2013 (acting 
by its Special Administra tor Mr Chris 
Pavlou from Nicosia)   
 
 
 
Claimant  
 - and – 
 
 ANDREAS VGENOPOULOS  
EFTHIMIOS BOULOUTAS  
KYRIACOS MAGEIRAS  
(12) MARFIN INVESTMENT GROUP 
HOLDINGS S.A.   
 
 
 
Defendants  
____________________  
Charles Samek QC and James McWilliams (instructed by DLA Piper LLP) for 
the Claimant  
Ali Malek QC and James Evans (instructed by Three Crowns LLP) for the 
Defendants  
Hearing dates: 10 and 17 June 
 2016
   
____________________  
HTML VERSION OF JUDGMENT  
____________________  
Crown Copyright ©  
THE HON. MR. JUSTICE PICKEN:  
Introduction  
1. This high value case raises two interesting and apparently novel questions: 
first, whether, in the case of a worldwide freezing order obtained in a foreign 
jurisdiction, the effect of obtaining an order under Artic le 38 of the Judgments 
Regulation (Council Regulation (EC) No. 44/2001 of 22 December 2000) (the 
'Judgments Regulation') permitting the registration of the worldwide freezing 
order as a judgment of the Queen's Bench Division of the High Court of 
Justice of  England and Wales is that the worldwide freezing order becomes 
immediately effective and fully enforceable or whether it only becomes 
effective and fully enforceable if there is no appeal brought in respect of the 
registration order within two months of i ts being made or, if there is an appeal 
in that time period, on determination of that appeal; and secondly, whether 
"measures of enforcement"  (as referred to in Article 47.3 of the Judgments 
Regulation) includes service of the worldwide freezing order on, and/or 
notification of its terms to, third parties or whether "measures of enforcement"  
are confined to processes in which the Court is involved in securing 
enforcement.  
2. As to the first of these questions, the Claimant argues for the former position 
whils t the Defendants argue for the latter. As to the second question, the 
Claimant argues for the latter position whilst the Defendants argue for the 
former. The Defendants contend that it is appropriate in this case that the 
Court should exercise its inherent  power to vary its own orders to make the 
meaning and intention of the Court clear (see Practice Direction 40B, 
paragraph 4.5) and to grant declaratory relief as to the parties' rights under a 
Court order, as happened in Masri v Consolidated Contractors (O il & Gas) 
Company SAL  [2009] EWCA Civ 36  and as also happened, in a freezing 
order context, in JSC BTA Bank v Ablyazov  [2015] UKSC 64 , a case in which 
Lord Clarke described at [16] the " sole question" as being  "what the freezing 
order in fact made means ".  
Factual background  
3. Before I come on to address the questions to w hich I have referred, I should 
firstly describe the factual context in which the questions come to be 
considered. That factual context, which is either not in dispute at all or which 
for present purposes is not in dispute, was helpfully summarised in the 
skeleton argument submitted by Mr Charles Samek QC and Mr James 
McWilliams on the Claimant's behalf, as well as in the witness statements of 
Dr Fotios Karatzenis, who is Chief Legal Counsel of the Twelfth Defendant 
('Marfin'), and Mr Jeremy Andrews, a partn er in DLA Piper LLP, dated, 
respectively, 9 May 
 2016
  and 7 June 
 2016.
   
4. The Claimant is a registered Cypriot entity, which until 2012 offered a full 
range of banking, insurance and other related financial services and products 
operating in Cyprus, Greece, the United Kingdom, Serbia, Romania, Ukraine, 
Malta and Russia. On 18 Ma y 2012, the Cypriot Government decided to 
underwrite the new issue of shares in the Claimant valued at €1.8 billion on 
the basis of the provisions of the Cypriot Law on Financial Crisis Management 
of 2011, Law 201/2011. On 26 March 2013, Mrs Andri Antoniad ou of Nicosia 
was appointed as Special Administrator of the Claimant pursuant to Order 
94/2013 of the provisions of the Cypriot Law on Resolution of Credit and 
Other Institutions 2013 (L.17(I)/2013). The Claimant is now under a process 
known as 'resolution ' in Cyprus.  
5. On 26 November 2012, the Claimant issued a writ of summons in the District 
Court of Nicosia against the First, Second and Third Defendants along with 8 
others. The claims brought in those proceedings allege, on the Defendants' 
part, various b reaches of fiduciary duties, breach of trust, negligence, abuse of 
position, conflict of interest, and conspiracy in a manner contrary to the 
interests of the Claimant. Subsequently, on 29 April 2013, the same day as the 
writ of summons was amended by the Claimant to add Marfin to the 
proceedings (as the Twelfth Defendant), the Claimant filed an ex parte  
application in the District Court of Nicosia which sought worldwide freezing 
orders and discovery orders against the then defendants. On 8 May 2013, this 
application was granted and a worldwide freezing order was obtained on an 
interim basis up to the value of €3,790,000,000 in the case of the First and 
Second Defendants and up to the value of €1,500,000,000 in the case of the 
Third Defendant. The same order  prohibited Marfin from transferring assets to 
the First, Second and Third Defendants. The following month, on 23 May 
2013, the Claimant filed an ex parte  application and obtained an order for 
permission to serve the writ of summons and the interim worldwi de freezing 
order out of the jurisdiction on the Defendants in Greece. Following this, on 
28 June 2013, the First and Fourth Defendants applied to set aside the writ of 
summons and the interim worldwide freezing order on procedural grounds, 
something which  was also done by the Second and Third Defendants a few 
days later on 1 July 2013. The next day, the First, Second and Third 
Defendants filed oppositions to the interim worldwide freezing order.  
6. These applications were ultimately unsuccessful, the District Court of Nicosia 
on 23 May 2014 issuing a final judgment following an inter partes  hearing 
which had the effect of making the interim worldwide freezing order a final 
worldwide freezing order which is to remain in force until the  completion of 
the proceedings before the District Court of Nicosia. This final order (the 
'Cypriot Freezing Order'), like the interim worldwide freezing order, deals 
with each of the Defendants separately and provides as regards the First, 
Second and Thir d Defendants (but not Marfin) as follows:  
"iv (1) Save as provided in paragraph (2) above, the conditions of this Order 
do not affect or concern anybody outside the jurisdiction of the Courts of the 
Republic of Cyprus.  
(2) The conditions of this Order aff ect the following persons which are found 
in a country or state outside the jurisdiction of the Courts of the Republic of 
Cyprus:  
… 
b Any person, including any banking institution or other financial 
organization,  
… 
ii in relation to which this Order has b een determined as being applicable 
and/or otherwise executable by the Courts of a country which has jurisdiction 
on the said person or on the assets of this person."  
7. Before turning to deal with the steps which the Claimant has taken to register 
the Cypriot  Freezing Order in this jurisdiction, I should mention that I have 
been made aware of the fact that the First Defendant and Marfin are claimants 
in an ICSID arbitration brought by them against the Republic of Cyprus. In his 
witness statement Dr Karatzenis suggested that the claims in that arbitration 
cover the same ground as that covered by the claims made by the Claimant 
against the Defendants in the proceedings before the District Court of Nicosia. 
He went on to suggest that the latter proceedings have be en pursued by the 
Claimant, which he described as being state -owned and state -controlled, as 
part of an attempt by the Republic of Cyprus to "hamper"  the Defendants' 
pursuit of the ICSID arbitration claim, and that the obtaining of the Cypriot 
Freezing Ord er, as well as its registration in this jurisdiction, also forms part of 
that attempt. On the Claimant's behalf, Mr Andrews explained in his 
responsive witness statement that this is not accepted. It is, in any event, for 
immediate purposes not a matter wh ich is relevant.  
8. Somewhat more relevant is the fact that, on 12 February 2015, the Claimant 
(then instructing Eversheds LLP rather than DLA Piper LLP, but with Mr 
Samek QC acting at that stage also) made an application to the Queen's Bench 
Division of the  High Court of England and Wales to register the Cypriot 
Freezing Order as a judgment pursuant to Article 38 of the Judgments 
Regulation. Although registration applications are normally dealt with on 
paper, and indeed the Claimant's application requested t hat the application be 
addressed "without a hearing" , it is apparent that Master Leslie was not 
willing to proceed in that way because he made a note on the application 
notice stating: "See me in Practice, if so advised. See Art 31 of EC Reg 
44/2001" . He c learly had in mind that it would be open to the Claimant to 
apply for a freezing order (a "protective measure"  as described in Article 31: 
see below) and was querying whether, in those circumstances, the appropriate 
course was to seek an order permitting r egistration of the Cypriot Freezing 
Order.  
9. At the hearing which subsequently took place before Master Leslie, on 26 
February 2015, he raised the point which was concerning him as regards 
Article 31. Indeed, he asked, somewhat prophetically and certainly r elevantly, 
what the effect would be were the Cypriot Freezing Order to be registered. Mr 
Samek QC's response was to say that "it would be as if it were an English 
freezing order and that … the Applicant was considering going off to the High 
Court to seek s pecific interim relief as would be available here against third 
parties" . Master Leslie was ultimately persuaded that he had jurisdiction to 
make the registration order sought and that he should make such an order. 
Indeed, I did not understand Mr Malek QC and Mr Evans to dispute that this is 
the position. They accepted, in fact highlighted during the course of Mr Malek 
QC's oral submissions, the fact that, as appears from the wording of Article 32 
of the Judgments Regulation, as set out below, the definitio n of "judgment"  is 
wide enough to embrace a worldwide freezing order, and furthermore there is 
authority from the Court of Justice of the European Union, then called the 
Court of Justice of the European Communities, (the 'CJEU') in the form of 
Denilauler v  SNC Couchet Frères  125/79 [1980] ECR 1553 at [17] that, 
provided that the freezing order has been made after an inter partes  hearing, 
the Judgments Regulation applies.  
10. The other matter to note is that, in making the order which he did, Master 
Leslie woul d have been aware of what had been stated in the witness 
statement made by Mr David Flack, a partner in Eversheds LLP, and dated 12 
February 2015. In paragraphs 35 and 36 of that witness statement, Mr Flack 
stated as follows:  
"35. The Judgment subject of [the Claimant's] present application was 
delivered on 23 May 2014. There has been a delay in bringing this application 
primarily because of the bureaucratic internal approval processes of the 
Resolution Authority of [the Claimant] (i.e., the Central Bank o f Cyprus), 
without whose approval [the Claimant] cannot take any foreign legal advice 
and/or legal measures outside of Cyprus.  
36. Despite this delay, it is important to [the Claimant] that the Judgment is 
registered so that it may serve it on the Responde nts and take appropriate 
measures for its enforcement in England and Wales. In relation thereto, after 
filing this application, [the Claimant] intends to give notice of the Judgment 
and this application to third party financial institutions in the UK there  [the 
Claimant] believes the Respondents have/had substantial assets. Again, 
because of the reasons for delay explained above, [the Claimant] has been 
unable (until now) to give notice of the Judgment to the third party financial 
institutions with a view t o gaining information about preserving the assets of 
the Respondents. [The Claimant's] application for registration of the 
Judgment is therefore the first step in its efforts in seeking future relief before 
the English court."  
It follows that the Claimant was making no secret of its intentions, specifically 
that it planned on notifying third party banks about the Cypriot Freezing 
Order.  
11. The order which Master Leslie made (the 'Registration Order') was in standard 
terms and stated as follows:  
"1. The Judgme nt dated 23 May 2014 of the District Court of Nicosia, Cyprus, 
with Action No. 8400/2012 between the Claimant/Applicant and the 
Defendants/Respondents 1, 2, 3 and 12 (which itself made final and absolute 
until trial or further order the interim orders date d 8 May 2013 of the District 
Court of Nicosia, Cyprus, with Action No. 8400/2012 between the 
Claimant/Applicant and the Defendants/Respondents 1, 2, 3 and 12) may be 
registered as a judgment of the Queen's Bench Division of the High Court of 
Justice of Eng land and Wales pursuant to Article 38 of the Judgments 
Regulation (Council Regulation (EC) No. 44/2001 of 22 December 2000), for 
enforcement in England and Wales.  
2. Respondents 1, 2, 3 and 12 pay the Applicant's costs of this application to 
be assessed if  not agreed, with a payment on account thereof to be made 
within 28 days of service of this order in the total sum of £10,000.00.  
3. The party entitled to the benefit of the judgment is Cyprus Popular Bank 
Public Co Ltd (also known as 'Laiki') under resolu tion pursuant to the 
provisions of the Resolution of Credit and Other Institutions Law 2013 N. 
17(I)/2013 (acting by its Special Administrator, Andri Antoniadou, from 
Nicosia, Cyprus) and its address for service within the jurisdiction is the 
address of it s instructed solicitors Eversheds LLP at One Wood Street, London 
EC2W 7WS (Ref: FLACKD/300174.000001).  
4. Respondents 1, 2, 3 and 12 have the right to appeal against this Order by 
making an appeal within 2 months after the date of service of this order on 
them. No measures of enforcement will be taken by the party entitled to the 
benefit of the judgment before the end of that period, other than measures 
ordered by the court to preserve the property of the judgment debtors."  
The Registration  Order was subsequently varied by an order made by Master 
McCloud on 26 August 2015 but not in a manner which is material for present 
purposes.  
12. It is a curiosity of this case that, having obtained the Registration Order in 
February 2015, it was not until a lmost a year later that the Claimant did 
anything with the Registration Order and the Cypriot Freezing Order to which 
it relates. On 4 February 
 2016
  DLA Piper LLP wrote to Union Bancaire 
Privée ('UBP') in, inter alia , the following terms:  
"3. On 23 May 2014, Cyprus Popular Bank obtained a judgm ent against (i) 
Mr Andreas Vgenopoulos, (ii) Mr Efthimios Mbouloutas, (iii) Mr Kyriacos 
Mageiras and (iv) Marfin Investment Group Holdings S.A. ('MIG') (together 
the 'Defendants') in the District Court of Nicosia, Cyprus (the 'Cypriot 
Judgment'), a copy of  which we enclose, together with a certified English 
translation.  
4. The Cypriot Judgment provides that the interim order issued by the District 
Court of Nicosia in Cyprus on 8 May 2013 (the 'May 2013 Order') be 
rendered absolute and valid until the final trial of the action. You are invited 
to consider the English translation of the May 2013 Order enclosed with this 
letter in detail."  
The letter then explained what the various prohibitions in the Cypriot Freezing 
Order were, highlighting as follows at para graph 4.5:  
"The terms of the May 2013 Order affect banks and financial organisations 
outside the jurisdiction of the Courts of the Republic of Cyprus who have been 
given notice of the May 2013 Order (paragraphs A.3.iv(2)(b), B.3.iv(2)(b), 
C.3.iv(2)(b))."  
DLA Piper LLP continued:  
"5. Following the award of the Cypriot Judgment, Cyprus Popular Bank 
obtained an Order in the English Court dated 26 February 2015 that 
registered the Cypriot Judgment as a judgment of the Queen's Bench Division 
of the High Court of  Justice of England and Wales pursuant to Article 38 of 
the Judgments Regulation (Council Regulation (EC) No. 44/2001 of 22 
December 2000), for enforcement in England and Wales (the 'English Order'). 
A copy of the English Order is also enclosed, together w ith a copy of a further 
Order of the English Courts dated 26 August 2015 which noted the change of 
administrator and law firm identified in the English Order.  
6. The prohibition on disposing or dealing with or diminishing the value of 
assets includes any c ash or assets held by any of the Defendants whether in 
their own name or not, whether solely or jointly owned, and whether their 
interest in any asset is legal or beneficial."  
The letter concluded as follows:  
"7. We seek your written confirmation by 5 pm o n 5 February 
 2016
  that, in 
respect of any assets of the Defendants in your custody, possession or power, 
you will not permit the Defendants to remove these from England and Wales 
or to dispose or to deal with them or to diminish their value. In the absence of 
hearing from you, we may apply to the court without further notice to you.  
8. We further request that you confirm by return (i) whether or not any of the 
Defendants hold any accounts at your bank; and (ii) if so, the sums held in 
those accounts.  
9. For the avoidance of doubt, you are no w considered to be on notice of each 
of the May 2013 Order, the Cypriot Judgment and the English Order. Should 
you fail to comply with the terms of those orders and judgment you may be 
found in contempt of court."  
13. UBP's response the next day was to send a letter signed jointly by Joanna 
Claydon -Voyce, Head of Legal at UBP, and by Peter Drew, Head of 
Compliance at UBP, in which the following was stated:  
"Pursuant to your request, we confirm that we now have notice of and we will 
comply with the Order of the  High Court of England and Wales registering the 
judgement of the District Court of Nicosia, Cyprus, Action No. 8400/2012 with 
immediate effect.  
As regards your request for confirmation and information in paragraph 8 of 
your letter, we are advised that the  Order of the High Court does not oblige us 
to provide you with such information. As a result, we are bound by our duties 
of confidentiality and personal data protection owed to our clients and, 
subject to any further directions or orders that the Court ma y make at this 
stage are unable to assist you with your request."  
14. This was followed, after certain telephone exchanges, by an email from Miss 
Claydon -Voyce to Jamie Curle, a partner at DLA Piper LLP, on 25 February 
2016,
  in which she stated that "we are being told that the order is 
unenforceabl e in the UK as it has not been registered" . Mr Curle's response to 
this took the form of an email the next day, in which he stated as follows:  
"While it is obviously not for us to advise you, our client's position is as 
follows:  
1 By Order of the English Court dated 26 February 2015, the Judgment of the 
District Court of Nicosia in Action no. 8400/2012 dated 23 May 2014 (the 
'Cypriot Judgment') was registered as a judgment of the High Court of 
England and Wales.  
2 The effect of such registration is that th e Cypriot Judgment takes effect in 
England and Wales as though it were a judgment rendered by a Court in this 
jurisdiction. Accordingly, having received notice of it, UBP are bound by the 
English Order and must ensure that its terms are complied with.  
3 Paragraph 4 of the English Order, which provides for certain of the 
Respondents to have a right of appeal, does not impact on the Order's validity 
or enforceability as against the Respondents (or you). The purpose of that 
provision is to allow a period in wh ich enforcement against an executory 
judgment may not take place, but this does not impact on the prohibition on 
disposition, which is [a] measure designed to prevent the Respondents from 
taking any steps that may prejudice a final judgment. That prohibiti on falls 
within the category of 'measures ordered by the court to preserve the property 
of the judgment debtor'.  
4 Accordingly, and as communicated to you in our letter of 4 February, our 
client's position is that the English Order is a fully effective and  enforceable 
order of the English Court that is binding on UBP."  
Mr Malek QC was highly critical of this response. He submitted, in particular, 
that, in circumstances where the Claimant had not sought a freezing order in 
this jurisdiction, Master Leslie ha ving raised the point specifically with the 
Claimant at the hearing on 26 February 2015, Mr Curle was wrong to 
characterise the Cypriot Freezing Order, in effect, as though it were such a 
freezing order. Mr Samek QC, in contrast, submitted that what Mr Cur le told 
Miss Claydon -Voyce was both accurate and appropriate, with the exception of 
what was stated in the last sentence of paragraph 3 which Mr Samek QC 
accepted was wrong but which he described as being of no consequence.  
15. Be that as it may, the Defendants having instructed Three Crowns LLP, 
correspondence then ensued between the parties' solicitors. It is that 
correspondence which has culminated in the making of the present 
application, alongside the bringing of an appeal a gainst the Registration Order 
which will be heard before the end of July. In the meantime, as Mr Malek QC 
and Mr Evans pointed out at the hearing, in practical terms the position 
remains as described in UBP's 5 February 
 2016
  letter in that the 
Defendants' various bank accounts at UBP in London  are frozen.  
The Judgments Regulation  
16. It is next necessary to set out certain parts of the Judgments Regulation, 
starting with Article 31 ( "Provisional, including protective, measures" ) which 
states as follows:  
"Application may be made to the courts of a Member State for such 
provisional, including protective, measures as may be available under the law 
of that State, even if, under this Regulation, the courts of another Member 
State have jurisdiction as to the su bstance of the matter."  
As will appear shortly, the particular relevance of Article 31 in the present 
case is the later reference in Article 47 to there being a power "to proceed to 
any protective measures"  once a "declaration of enforceability"  has been 
obtained.  
17. Article 31 is the last of the provisions in Chapter II ( "Jurisdiction" ). The next 
chapter, Chapter III, is concerned with "Recognition and Enforcement" and 
starts with Article 32 making it clear that the word "judgment"  as it is used in 
Chapter I II has a broad ambit. Article 32 provides:  
"For the purposes of this Regulation, 'judgment' means any judgment given by 
a court or tribunal of a Member State, whatever the judgment may be called, 
including a decree, order, decision or writ of execution, a s well as the 
determination of costs or expenses by an officer of the court."  
In the circumstances, there was no issue between Mr Samek QC and Mr 
McWilliams on behalf of the Claimant and Mr Ali Malek QC and Mr James 
Evans on behalf of the Defendants that t he Cypriot Freezing Order comes 
within the scope of Article 32.  
18. Articles 33 to 37 are then concerned with "Recognition" and, as such, do not 
require to be quoted here. It is, however, to be noted that a judgment will not 
be recognised in certain circumsta nces, namely where recognition would be 
manifestly contrary to public policy, where it is a default judgment and 
insufficient notice was given to the defendant, where the judgment is 
irreconcilable with a judgment given in a dispute between the same partie s in 
the Member State where recognition is sought, and where the judgment is 
irreconcilable with an earlier judgment given in another Member State or a 
third party State involving the same cause of action and the same parties (see 
Article 34).  
19. More pertin ently for present purposes, as for the section dealing with 
"Enforcement" , this spans Articles 38 to 52. Specifically, Article 38.1 states as 
follows:  
"A judgment given in a Member State and enforceable in that State shall be 
enforced in another Member St ate when, on the application of any interested 
party, it has been declared enforceable there."  
Article 40.1 then states:  
"The procedure for making the application shall be governed by the law of the 
Member State in which enforcement is sought."  
This is fol lowed by Article 41, which is in the following terms:  
"The judgment shall be declared enforceable immediately on completion of the 
formalities in Article 53 without any review under Articles 34 and 35. The 
party against whom enforcement is sought shall not  at this stage of the 
proceedings be entitled to make any submissions on the application."  
This is followed by Article 42.1, which states:  
"The decision on the application for a declaration of enforceability shall 
forthwith be brought to the notice of the applicant in accordance with the 
procedure laid down by the law of the Member State in which enforcement is 
sought."  
Article 43.1 then deals with the right of appeal:  
"The decision on the application for a declaration of enforceability may be 
appealed agai nst by either party."  
20. Most significant in the context of the present dispute is, however, Article 47. 
This provides as follows:  
<p 
>"1. When a judgment must be recognised in accordance with this Regulation, 
nothing shall prevent the applicant from availing himself of provisional, 
including protective, measures in accordance with the law of the Member 
State requested without a declaration of enforceability under Article 41 being 
required.  
2. The declaration of enforceability shall carry with it the power to proceed to 
any protective measures.  
3. During the time specified for an appeal pursuant to Article 43(5) against 
the declaration of enforceability and until any such appeal has been 
determined, no measures of enforcement may be taken other tha n protective 
measures against the property of the party against whom enforcement is 
sought."  
The parties' contentions (in outline)  
21. I do not propose setting out the parties' submissions in full detail. I shall 
address the substance of the submissions which were made in the next section 
of this judgment. It is nonetheless convenient to summarise the respective 
contentions, and I do that at this juncture. In so doing, I focus on the rival 
submissions as they ended up in the hearing before me. I do not, therefo re, 
necessarily deal with every point which was made along the way. I can 
confirm, however, that I have had regard to everything which was submitted, 
even if I do not mention every detail.  
22. Mr Malek QC and Mr Evans submitted that the effect of Article 47.3  of the 
Judgments Regulation (as echoed in paragraph 4 of the Registration Order) is 
to mean that the worldwide freezing order (in this case the Cypriot Freezing 
Order) is not enforceable immediately on the making of the order permitting 
registration. They  further submitted that where the judgment which is made 
the subject of an order for registration is a worldwide freezing order, then, 
whatever the position as regards other forms of judgment (specifically money 
judgments), it is the giving of notice of th e worldwide freezing order to third 
parties which represents enforcement. It follows, Mr Malek QC and Mr Evans 
submitted, that in this particular type of case a "measure of enforcement"  (as 
referred to in Article 47.3 and paragraph 4 of the Registration Or der) is not 
confined to enforcement through any further court involvement but includes 
the serving and giving of notice of the Cypriot Freezing Order. It was their 
submission that what the Claimant in this case has done is to use Article 38 of 
the Judgment s Regulation as an alternative to seeking equivalent freezing 
order relief in this jurisdiction notwithstanding that it was always open to the 
Claimant to apply for such relief by virtue of what is stipulated in Articles 
47.2 and 47.3, which both make it c lear that a claimant can take "protective 
measures" . The Claimant having chosen not to adopt this course of action, 
possibly because of an appreciation that a freezing order might not be 
obtainable owing to the delay which occurred between May 2014 and ear ly 
2015 when the Registration Order was obtained, Mr Malek QC and Mr Evans 
submitted that the Claimant should not be permitted, in effect, to translate the 
Cypriot Freezing Order into the equivalent of a freezing order obtained in this 
jurisdiction. The mo re so, in circumstances where, had a freezing order been 
obtained on a without notice basis in this jurisdiction, it would have been open 
to the Defendants in the usual way to seek the discharge of that order, yet in 
the case of the Registration Order the only option available to the Defendants 
is to bring an appeal.  
23. In response, it was the submission of Mr Samek QC and Mr McWilliams that, 
in making their argument, Mr Malek QC and Mr Evans failed to distinguish 
between, on the one hand, a judgment being "declared enforceable"  in a 
Member State (the precise language used in Article 38.1 and Article 41 and 
language which is mirrored also in Article 43.1 and Article 47 itself) and, on 
the other hand, "measures of enforcement"  (as referred to in Article 47.3). This 
distinction, Mr Samek QC and Mr McWilliams submitted, means that the 
Cypriot Freezing Order became enforceable immediately once the Registration 
Order was made. Furthermore, the position with a worldwide freezing order, 
they submitted, is no different  to the position with a money "judgment" : in 
both cases, there can be no objection to informing a party about the existence 
of an order to which it is subject, and it is only if there is non -compliance that 
"measures of enforcement"  involving the further i ntervention of the Court 
need to be taken.  
Discussion and decision  
24. At the start of the hearing, Mr Malek QC and Mr Evans provided me with a 
draft amended form of the order which they explained they were inviting me 
to make. I need not set out the terms of  that draft in all its respects, but it is 
right to acknowledge that, as Mr Samek QC highlighted when he came to 
make his oral submissions, the order as ultimately sought included something 
which had not previously been included in the draft order accompan ying the 
application notice, albeit that it was touched upon in the skeleton argument 
submitted by Mr Malek QC and Mr Evans. The two forms of order each 
included wording designed to make it clear that the reference to "measures of 
enforcement" in paragraph  4 of the Registration Order include, in the present 
context, serving the Cypriot Freezing Order on a third party bank or giving 
notice of its terms. However, the draft amended order contained a new first 
paragraph which stated that the Cypriot Freezing Or der "is not enforceable by 
the Claimant in England and Wales until the determination of the appeal"  
against the Registration Order. Mr Samek QC's submission was that, on any 
view, such an order would go too far since the effect of such a declaration 
being made would be that the Court would be declaring that the UBP bank 
accounts were no longer frozen. He pointed out that this would permit a 
particular payment concerning a company called Lucca Properties Ltd to be 
made. He highlighted, in particular, that in structions had been given to UBP 
that that payment should be made the very day, 23 February 
 2016,
  that the 
Cypriot Freezing Order had been served on the Defendants in Greece. This is 
apparent from a letter which was sent to UBP by Three Crowns LLP on Lucca 
Properties Ltd's behalf three days la ter on 26 February 
 2016,
  in which UBP 
was asked to allow the payment to be made. UBP has not to date agreed to this 
in view of the Cypriot Freezing Order and the Claimant's insistence that UBP 
is subject to the Cypriot Freezing Order by virtue of the Registration Order 
having made  the Cypriot Freezing Order enforceable.  
25. In these circumstances, it seems to me to be both inevitable and highly 
desirable that I should determine whether the additional relief sought in the 
draft amended order should be granted in the present case, and n ot confine 
myself to deciding whether serving the Cypriot Freezing Order on UBP or any 
other third party in this jurisdiction, or giving notice of its terms to such third 
parties, amounts to the Claimant taking a "measure of enforcement"  for the 
purposes o f paragraph 4 of the Registration Order and Article 47.3 of the 
Judgments Regulation. For reasons which I shall now explain, I am satisfied 
that the Cypriot Freezing Order is not currently fully effective and 
enforceable, and nor did it become fully effect ive and enforceable on the 
making of the Registration Order, but that it will only become fully effective 
and enforceable on determination of the Defendants' appeal against the 
Registration Order. I am satisfied also that, in relation to an underlying orde r 
which is a worldwide freezing order, included in the description of "measures 
of enforcement"  is service of the freezing order and notification of its terms to 
third parties, and that it is artificial and wrong to limit "measures of 
enforcement"  to measu res which involve a party in the Claimant's position 
going to the Court and obtaining further orders of an enforcement nature after 
obtaining an order for registration.  
 
  
 
  
Enforceability  
26. I deal, first, with the question of enforceability. I agree wit h Mr Malek QC's 
submission that it is artificial and unrealistic, adopting the terminology of 
Article 32, to seek to distinguish between a "judgment"  which is enforceable 
and a judgment in relation to which  "measures of enforcement"  can 
legitimately be tak en. Commonsense seems to me to dictate that if "measures 
of enforcement"  cannot be taken, then, the "judgment"  is not, in a real and 
practical sense, fully effective and enforceable. Put another way, it is difficult 
to see how a claimant could say, on the one hand, that it has a "judgment"  
which is enforceable whilst also saying, on the other hand, that it cannot take 
"measures of enforcement"  in relation to that "judgment" . I struggle, in 
essence, to see how there really is the distinction which Mr Samek Q C and Mr 
McWilliams urged upon me. Indeed, reading Articles 38 to 47 together and 
recognising that this is how, quite obviously, they were intended to be read, 
and not, therefore, each of the provisions in isolation, I regard it as tolerably 
clear that Art icle 47.3 qualifies everything which has been stated in Articles 
38 to 46 concerning "enforceability"  and that, in the circumstances, it would 
be wrong to seek to divorce enforceability from the ability to take "measures 
of enforcement"  in the manner which  the argument advanced by Mr Samek 
QC and Mr McWilliams necessarily requires. It is important, as I see it, in 
particular, to consider what is stated in Article 38.1, the first of the articles 
concerned with  "Enforcement" , and to read this alongside what i s stated in 
Article 47.3. Focusing on these provisions demonstrates that there is not the 
distinction which the Claimant's argument would suggest. True it is that 
Article 38.1 provides that a "judgment … shall be enforced in another Member 
State when, on t he application of any interested party, it has been declared 
enforceable there".  However, if anything, with its reference to actual 
enforcement ( "shall be enforced" ), I consider that this makes it less, rather 
than more, likely that the intention would be that a "judgment"  could somehow 
be fully effective and enforceable yet not something which a claimant can 
actually enforce. Once Article 47.3 is then considered, leaving aside for 
present purposes Articles 39 to 46, that this is the proper approach is, in my 
view, confirmed. Article 47.3 is absolute in its prohibition on "measures of 
enforcement"  being taken; in other words, it is very clear that a claimant is not 
at liberty to enforce notwithstanding the declaration of enforceability which 
has been obtaine d.  
27. When the intervening provisions, Articles 39 to 46, are taken into account and 
it is appreciated that the other party has no entitlement at all to make 
submissions on the claimant's application for a declaration of enforceability 
(Article 41) and its only entitlement is to bring an appeal (Article 43.1), this 
serves to underline the inappropriateness of the suggested distinction between 
enforceability and the claimant's ability to take "measures of enforcement" . I 
consider it obvious that, in circumstan ces where the application for a 
declaration of enforceability is made without notice, with the other party only 
becoming aware of the decision once it has been made (Article 42), the 
declaration of enforceability cannot mean that the decision is fully effe ctive 
and enforceable in advance of an appeal or the expiry of the time limited for 
an appeal (two months in accordance with Article 47.3). Mr Malek QC and Mr 
Evans described the quid pro quo  for the streamlined procedure set out in the 
Judgments Regulatio n as being that a claimant cannot proceed to enforce the 
"judgment"  until the defendant has had the opportunity to bring an appeal 
against the making of the registration order. I agree with that characterisation 
of the position. I agree also that it is sur ely only right and fair that, before 
effect is given to the "judgment"  in this jurisdiction, the defendant should have 
the ability to have its say about the registration order having been made in its 
absence.  
28. Furthermore, I struggle to see why a claimant which has obtained a declaration 
of enforceability should find itself in a better position pending an appeal, or in 
the two month period when an appeal can be brought if an appeal is, in the 
event, not brought, than a claimant would be in if an appeal were  to be brought 
within the two month period and that appeal were to prove to be successful. 
Until it is known whether an appeal is to be brought and, if it is, whether it is 
going to succeed, it seems to me that it is appropriate that the position should, 
in effect, be neutral. The logical consequence of Mr Samek QC's and Mr 
McWilliams's submission being accepted is, however, that the claimant is in a 
better position simply by dint of having obtained a registration order on a 
without notice basis, and nothin g more than that. I see no justification for 
adopting such an approach. This is all the more the case, given that Articles 
47.2 and 47.3 both expressly permit a claimant, having obtained a registration 
order or, more accurately, using the language of Artic les 47.2 and 47.3, a 
"declaration of enforceability" , to take "protective measures" , in the case of 
Article 47.3 specifically pending the resolution of any appeal. In view of this, 
pending an appeal a claimant has an appropriate level of protection and its  
position is safeguarded, provided obviously that it can persuade the Court in 
this jurisdiction to grant it relevant protective relief. In my view, there can be 
no justification for Article 38 effectively being used in such circumstances as, 
to use Mr Mal ek QC's and Mr Evans's label, a "short cut"  to the obtaining of a 
freezing order in this jurisdiction. It cannot be right, and it would be wholly at 
odds with the scheme of the Judgments Regulation, were a claimant to be able 
to achieve the immediate freez ing of bank accounts in this jurisdiction by 
obtaining an order pursuant to Article 38 without, pending an appeal, having 
to persuade the Court (in this jurisdiction) that it ought itself to grant a 
freezing order on conventional grounds.  
29. Mr Samek QC and Mr McWilliams disagreed. They suggested that there is, as 
they put it, "an illogicality"  in the position being as it is portrayed by Mr 
Malek QC and Mr Evans. The "illogicality" , they submitted, arises from the 
fact that, whereas in a case where the "judgment"  is a money judgment a 
claimant can, in line with Articles 47.2 and 47.3, pursue "protective 
measures" , in a case, such as the present, where the "judgment"  is a worldwide 
freezing order, and so a protective measure granted abroad, the claimant is in a 
worse position since it would, as Mr Samek QC and Mr McWiliams 
submitted, be "absurd"  for a claimant in such a case to have to seek a further 
freezing order in this jurisdiction in support of a freezing order which, in 
consequence of the r egistration order, has itself become an order of the Courts 
of England and Wales. For my part, I do not recognise either the illogicality or 
the absurdity which Mr Samek QC and Mr McWilliams identify. Until such 
time as any appeal has been determined, the position is clear: under Articles 
47.2 and 47.3, the only measures which can be taken by a claimant are 
protective measures which, in accordance with Article 31, will be whatever 
protective measures are available in this jurisdiction (as the Member State 
where the Cypriot Freezing Order is being sought to be enforced). It may be 
that a freezing order will be obtainable in this jurisdiction in the same way as 
it was in Cyprus; it may be, however, that a freezing order will not be 
obtainable. It will depend o n the Claimant being able to satisfy the Court here 
that a freezing order is appropriately granted, including justifying the making 
of such an order notwithstanding what, at least on the face of it, appears to 
have been unjustifiable delay.  
30. My conclusion,  in the circumstances, is that the Cypriot Freezing Order is not 
currently fully effective and enforceable, and nor did it become fully effective 
and enforceable on the making of the Registration Order, but that it will only 
become fully effective and enfo rceable on determination of the Defendants' 
appeal against the Registration Order. It follows from this that I reject the 
submission made by Mr Samek QC and Mr McWilliams that, by virtue of 
what was stated in the Cypriot Freezing Order about it applying to  "Any 
person, including any banking institution or other financial organization, …in 
relation to which this Order has been determined as being applicable and/or 
otherwise executable by the Courts of a country which has jurisdiction on the 
said person or on  the assets of this person" , the Cypriot Freezing Order is 
currently fully effective and enforceable as regards UBP in accordance with its 
terms. I do not consider, in the circumstances, that it can be right to suggest 
that it "has been determined"  in this  jurisdiction that the Cypriot Freezing 
Order is "applicable"  or that it is "otherwise executable" . All that has so far 
happened is that the Claimant has obtained an order on a without notice basis 
and, in circumstances, where the Defendants are seeking to  appeal against the 
Registration Order.  
31. This is a conclusion which I have arrived at without reference to authority and 
having regard instead to what seems to me to be the correct position both as a 
matter of principle and by reference to the structure an d contents of Articles 
38 to 47 of the Judgments Regulation. Neither side was able to point me to any 
authority which would demand, or even justify, a different conclusion. Rather, 
the cases to which I was referred were generally relevant (or said to be 
relevant) not to the enforceability issue but to the question of what amounts to 
a "measure of enforcement"  for the purposes of paragraph 4 of the 
Registration Order and Article 47.3 of the Judgments Regulation. I shall, 
therefore, deal with those authoritie s in that context. It is, however, worth 
mentioning two cases at this juncture.  
32. The first is Calzaturificio Brennero S.A.S v Wendel GmbH Schuhproduktion 
International (Case 258/83)  [1986] 2 CMLR 59, in which Advocate -General 
Slynn (as he then was) conside red the forerunner to the Judgments Regulation, 
namely the Convention of 27 September 1968 on Jurisdiction and the 
Enforcement of Judgments in Civil and Commercial Matters (the '1968 
Convention'), specifically Article 39 (which Article 47.3 of the Judgment s 
Regulation essentially mirrors) as follows:  
"During the time specified for an appeal pursuant to Article 36 and until any 
such appeal has been determined, no measures of enforcement may be taken 
other than protective measures taken against the property of the party against 
whom enforcement is sought.  The decision authorising enforcement shall 
carry with it the power to proceed to any such protective measures."  
At pages 64 to 65, the Advocate -General stated:  
"The provisions of Articles 31 et seq. of the Convention envisage that a foreign 
judgment may only be reviewed as to its substance in the State in which it was 
given, not that in which it is to be enforced. The role of the courts in the 
enforcing State is correspondingly limited. Articles 38 and 39 af fect the 
immediate enforceability of the judgment in two specific cases. In the first 
place, when the judgment sought to be enforced is not final in the sense that it 
is still subject to an ordinary appeal, the court in the enforcing State may stay 
the pro ceedings under Article 38; there is a discretion. In the second case, 
when an appeal is brought against 65 the authorisation of enforcement (or the 
time for bringing such an appeal is still running) the court of the enforcing 
State can only issue protectiv e measures; it has neither the discretion nor the 
power to do more. …  
By 'protective measures' Article 39 of the Convention envisages those forms of 
relief available under the law of the enforcing State to prevent the judgment 
debtor from removing the asse ts on which execution is to be levied. By 
'measures of enforcement' which may not be taken, Article 39 means, in 
consequence, all other measures of enforcement, which usually take the form 
of the sequestration of the judgment debtor's property.  
… The obje ct of Article 39 is 'to ensure at the enforcement stage a balance 
between the rights and interests of the parties concerned, in order to avoid 
either of them suffering any loss as a result of the operation of the rules of 
procedure'. That balance may be sa feguarded, not threatened, by the adoption 
of protective measures. Article 39, thus, does not exclude protective measures 
which have the same effect as an order for protective measures in the 
judgment sought to be enforced merely because they do give effec t to that 
order. These are not the sort of measures which are prohibited by Article 39."  
As I shall come on to explain, Mr Samek QC relied on these passages in 
relation to the submissions which he made as regards "measures of 
enforcement" . For present purp oses, however, their significance lies in the 
emphasis by the Advocate -General on the 1968 Convention striking a balance 
between the interests of claimants and defendants "as a result of the operation 
of the rules of procedure" . That balance, as far as a d efendant is concerned, 
involves the right to appeal and, as far as a claimant is concerned, involves the 
ability to take protective measures. I consider that the same balance exists in 
the Judgments Regulation applicable in the present case, and that it is  that 
balance which means that Mr Malek QC and Mr Evans are right in the 
submissions which they make concerning enforceability and that Mr Samek 
QC and Mr McWilliams are wrong.  
33. The other aspect to be noted in relation to what the Advocate -General had to 
say in the Brennero  case, also supportive of the submissions made by Mr 
Malek QC and Mr Evans, is the express reference to Article 39 not excluding 
"protective measures which have the same effect as an order for protective 
measures in the judgment sought to  be enforced merely because they do give 
effect to that order" . This seems to me to confirm that the suggestions of 
illogicality and absurdity made by Mr Samek QC and Mr McWilliams are 
without foundation.  
34. The second authority to which I would refer at thi s stage is Banco Nacional 
de Comercio Exterior SNC v Empresa De Telecommunicaciones De Cuba 
SA [2007] EWCA Civ 662 , [2008] 1 WLR 1936 . This, too, runs counter to the 
suggestion that there is an illogicality and absurdity about the Defendants' 
position. In that case a foreign judgment was registered as happened in the 
present case, but (unlike in the present case) a separate freezing order was 
obtained in this jurisdiction. At [25] Tuckey LJ helpfully explained how 
Article 47 operates:  
"…All parts of article 47 are directed at enforcement.  Article 47(1) is simply 
dealing with the position before a declaration of enforceability/registration 
has taken place. All it is saying is that if the applicant is able to show that he 
has a judgment which must be recognised he is not prevented from avail ing 
himself of protective measures before the formalities which lead to 
registration have been completed. Such measures might well be necessary the 
moment judgment has been given in another member state or at least before 
the formalities required for regis tration, which include translation, have been 
completed. Each of the provisions of article 47 deals with the time at which 
things can or cannot be done. Thus article 47(1) deals with the time before 
registration; (2) with the time after registration; and ( 3) with the time after 
registration where there is an appeal pending."  
More pertinently still, Tuckey LJ went on, later in the judgment, to underline 
the important point that, as far as protective measures are concerned, these will 
only be granted in accor dance with the law of the member state in which the 
"judgment"  is sought to be registered. He said this at [44]:  
"… As the Capelloni  case [1985] ECR 3147, para 20 makes clear, the 
Convention and now the Regulation confine themselves to laying down the 
principle that the party who has a declaration of enforceability/registered a 
judgment may proceed with protective measures. Matters not covered by 
specific provisions are left to the procedural law of the court hearing the 
proceedings. Neither article 47 nor  any of the other provisions of the 
Regulation says anything about the character or scope of the protective 
measure required or indeed about the need to have any such measures at all. 
It seems to us therefore that an applicant for such measures must take t hem as 
he finds them in the jurisdiction where he seeks to enforce his judgment. So, if 
a particular measure has a certain feature, either the applicant accepts it or 
chooses not to avail himself of it. In this country a freezing order is available 
as a pr otective measure, but it has certain features which include the 
requirement for an undertaking to protect third parties. It does not seem to us 
that an applicant for this measure can say that he will not give the undertaking 
and is entitled to the measure without it. If this was the case such an applicant 
would be in a better position than a judgment creditor seeking to enforce an 
English judgment here."  
He continued in the next paragraph:  
"In the Capelloni case it seems that the judgment creditor was able  to arrange 
for protective sequestration of the judgment debtor's property without a court 
order. There is no equivalent right here. The applicant must apply to the court 
for a freezing order but if, for example, as a condition of granting such relief 
the court required him to prove the claim which gave rise to the judgment, that 
would obviously not be compatible with article 47. Similarly, as in the 
Capelloni  case, the court could not impose a time limit on the freezing order 
which was different from that laid down in article 47(3). But there is nothing 
incompatible with the Regulation in saying to an applicant who seeks a 
particular measure in a particular jurisdiction that he must take the measure 
as he finds it or not at all."  
Although Mr Samek QC took i ssue with whether Tuckey LJ was right to say 
that in the Capelloni  case the protective sequestration was arranged without 
Italian court involvement, this does not matter for present purposes since what 
matters is that what Tuckey LJ was making clear was th at a claimant must 
apply in this jurisdiction for any protective measure and that, in doing so, the 
claimant must effectively take the domestic court as it finds it. In the present 
case, therefore, there is nothing remarkable about the Claimant being under  an 
obligation to make a separate freezing order application by way of a protective 
measure under Article 47.3 even though the "judgment" is itself a freezing 
order, namely the Cypriot Freezing Order.  
"Measures of enforcement"  
35. Turning then to the second question, I agree with Mr Malek QC and Mr Evans 
when they submitted that,  "in any ordinary sense" , as they put it, the Claimant 
has effectively enforced the terms of the Cypriot Freezing Order, and the 
Registration Order, by serv ing those orders on UBP and seeking compliance 
with them by UBP, in effect insisting on the immediate freezing of UBP's 
bank accounts in the face of a threat of immediate contempt proceedings. In 
context, bearing in mind that the underlying "judgment"  is a worldwide 
freezing order, I am confident that what the Claimant has done in the present 
case amounts to a "measure of enforcement" . As the Advocate -General 
observed in his opinion in the Brennero  case at page 66: "Enforcement is  the 
carrying out of the ori ginal judgment ". In my judgment, by sending the 
Cypriot Freezing Order to UBP, the Claimant has carried that order out and, as 
such, should be regarded as having taken a "measure of enforcement" in 
relation to it.  
36. I acknowledge that, as Mr Samek QC was at  pains to point out, the Advocate -
General's observation in the Brennero  case was made in the context of a 
discussion which appears to have had in mind Court processes of enforcement 
rather than enforcement without the involvement of the Court. This is 
illustrated by the first paragraph of the passages from pages 64 to 65 which I 
have set out previously. It is also illustrated by the fact that the sentence which 
follows from the reference to enforcement being "the carrying out of the 
original judgment"  is in  the following terms:  
"It is only when the court hearing the appeal decides that enforcement may 
proceed that it has power to require security. That decision is only taken on 
the final hearing of the appeal; only on the final determination of the appeal 
can security be ordered."  
The focus there was clearly on the Court being engaged in the enforcement 
process. The same point is apparent from other authorities relied upon by Mr 
Samek QC during the course of his oral submissions. Thus, in Deutsche 
Genossensc haftsbank v Brasserie du Pecheur S.A. (Case 148/84)  [1986] 2 
CMLR 496 the CJEU, having cited the Brennero  case, stated at [18]:  
"The Convention merely regulates the procedure for obtaining an order for 
the enforcement of foreign enforceable instruments and  does not deal with 
execution itself, which continues to be governed by the domestic law of the 
court in which execution is sought, so that interested third parties may contest 
execution by means of the procedures available to them under the law of the 
State in which execution is levied."  
Again, this demonstrates a focus on the Court being involved in execution, as 
opposed to enforcement simply involving the claimant taking particular 
measures. The same applies to another case to which I was taken by Mr 
Samek QC, namely Hoffman v Krieg (Case C -145/86)  [1988] ECR 645, 
[1990] I L Pr 4, in which the CJEU stated as follows at [18]:  
"Thus the answer to be given to the national court is that a foreign judgment 
whose enforcement has been ordered in a Contracting St ate pursuant to 
Article 31 of the Convention and which remains enforceable in the State in 
which it was given must not continue to be enforced in the State where 
enforcement is sought when, under the law of the latter State, it ceases to be 
enforceable for  reasons which lie outside the scope of the Convention."  
37. Mr Samek QC also relied, in this respect, on Capelloni v Pelkmans (Case 
119/1984)  [1985] ECR 3147, [1986] 1 CMLR 388, another case involving 
Article 39 of the 1968 Convention, which Tuckey LJ had cit ed in the Banco 
Nacional  case. Mr Samek QC highlighted, in particular, the following 
paragraphs in the judgment of the CJEU:  
"[18] As the first paragraph makes clear, during this period the party in 
question cannot proceed with measures of enforcement str ictly so -called but 
must, if he considers it necessary, confine himself to taking protective 
measures against the property of the party against whom enforcement is 
sought. As the second paragraph states, the power to take such protective 
measures arises fr om the decision authorising enforcement.  
[19] The manifest purpose of this provision is to enable the party who has 
obtained authorisation for enforcement, but who cannot yet proceed to take 
enforcement measures, to prevent the party against whom enforcem ent is 
sought from disposing of his property in the meantime so as to render future 
enforcement unsuccessful or even impossible.  
[20] However, as in relation to enforcement proper, also with regard to the 
protective measures referred to in Article 39 the C onvention confines itself to 
stating the principle that the party seeking enforcement may proceed with such 
measures during the period indicated in that Article. On the other hand the 
Convention leaves the task of settling any matter which is not the subje ct of 
specific provisions in the Convention to the procedural law of the court in 
question."   
Mr Samek QC and Mr McWilliams emphasised the reference at [18] to 
"measures of enforcement strictly so -called" , suggesting that this shows that 
what enforcement e ntails is enforcement with the involvement of the Court 
and nothing else.  
38. Mr Samek QC and Mr McWilliams also referred to  West Tankers Inc v 
Allianz SpA [2012]  EWCA Civ 27 , [2012] Bus LR 1701  at [35] and [36] to 
similar effect. This case was concerned with section 66 of the Arbitration Act 
1996 and so enforcement of an arbitral award. It was not, therefore, concerned 
with the Judgments Regulation. Nor were various other authorities which they 
cited, such as Dadourian Group International Inc v Simms & Ors  [2006] 
EWCA Civ 399 , [2006] 1 WLR 24 99 (a case in relation to the enforcement 
abroad of worldwide freezing orders obtained in this jurisdiction), McGuffick 
v Royal Bank of Scotland plc  [2010] Bus LR 1108 (a consumer credit case, in 
which Flaux J held that notification of a debtor's default t o credit reference 
agencies did not amount to enforcement within the meaning of section 
77(4)(a) of the Consumer Credit Act 1974 but was instead simply a step taken 
with a view to enforcement), and Ryan v Williams  unrep. 13 January 2000 (a 
case in which Bu xton LJ, on an application for leave to appeal, considered that 
the judge at first instance had been "right to conclude that an application for a 
charging order nisi is not a breach of the obligation not to enforce a costs 
order without the leave of the co urt").  
39. Mr Samek QC and Mr McWilliams justified their reliance on these additional 
authorities on the basis that, although clearly Mr Malek QC was right when he 
observed that the Judgments Regulation is an EC regulation, he was wrong to 
suggest that, as su ch, regard should not be had to domestic authorities dealing 
with what enforcement is because enforcement is a matter for the member 
state where the  "judgment"  is sought to be enforced. Whether that is right or 
wrong is, in my judgment, not, however, impor tant in the present case. This is 
because I am clear that, whether regard is had to the authorities which address 
the Judgments Regulation and the 1968 Convention or domestic authorities 
arising in different contexts, the position is the same: in none of t hese cases 
was the issue which arises before me in the present case considered. 
Accordingly, I have not found any of the cases to which I was referred 
especially helpful. The issue for me is a very particular issue: it is whether, in 
the case of a  "judgmen t" which is a worldwide freezing order, enforcement 
can include serving the worldwide freezing order on a third party or notifying 
the third party of its terms, these being measures which, in practical terms, 
represent enforcement of such a type of order w ithout having to involve the 
Court. Authorities which deal with how a money "judgment"  is enforced, in 
other words through Court processes, provide no assistance in a case such as 
the present for the simple reason that, in the case of a money "judgment" , 
merely sending it to a party (whether the defendant or a third party), even if 
combined with a request (to the defendant but not presumably to the third 
party) that the relevant sum of money is paid, clearly does not entail any 
element of enforcement. Servi ce of a money judgment, even on the judgment 
debtor, has no effect other than to serve as confirmation that the judgment 
creditor or claimant requires that payment is made. The same cannot be said 
about a worldwide freezing order because, in contrast to a money judgment, it 
is the service of a freezing order, or notification of its terms, which makes it 
effective as against third parties and which, in practical terms, carries the 
freezing order into effect and so represents, or entails, enforcement of it. T his 
is sufficient without more to warrant the conclusion which I have reached, but 
that conclusion is all the more justified given that DLA Piper LLP not only 
served UBP with the Cypriot Freezing Order but went further, asking that 
UBP confirm that payment s would not be made out of relevant accounts in the 
light of the Cypriot Freezing Order.  
40. In short, I am clear that the Claimant's service of the Cypriot Freezing Order 
and the Registration Order on UBP, particularly when allied with DLA Piper 
LLP's threat s of contempt proceedings which have resulted in UBP's decision 
to freeze its accounts, constitute "measures of enforcement"  within the ambit 
of Article 47.3 of the Judgments Regulation and paragraph 4 of the 
Registration Order. Mr Malek QC did not suggest  that DLA Piper LLP and the 
Claimant, in doing what was done, were acting in anything other than good 
faith, believing that there was an entitlement so to act. I am clear about this 
also. However, what matters is that the Claimant has achieved its objectiv e of 
freezing the UBP accounts. As matters stand, as regards such accounts there is 
nothing left for the Claimant to do which has not already been done to carry 
the Cypriot Freezing Order into effect and thereby, again in practical terms, 
enforce that orde r. Furthermore, there is no need, if the Claimant's 
submissions are right, for the Claimant to pursue "protective measures" in the 
form of a freezing order obtained in this jurisdiction as permitted, and 
expressly envisaged, not only by Article 47.2 but al so by Article 47.3 in the 
context of any appeal. That cannot be what is intended by virtue of the 
Judgments Regulation. I cannot accept that pending an appeal the effect of 
Articles 38 to 47 of the Judgments Regulation, and paragraph 4 of the 
Registration Order, is to permit service of an underlying freezing order on a 
bank combined with threats of contempt for any failure to comply. I agree 
with Mr Malek QC and Mr Evans that this would be a commercial nonsense 
since a freezing order is given effect to as a gainst third parties such as a bank, 
and so enforced, by service of the freezing order on such third parties – as 
demonstrated in the present case by UBP's decision to freeze its accounts in 
London when served with the Cypriot Freezing Order and the Regist ration 
Order. Nor is it an answer for Mr Samek QC to contend, as he did during his 
oral submissions, that the Claimant was entitled to tell UBP that the Cypriot 
Freezing Order was effective as against UBP because the Registration Order 
means that the Cypri ot Freezing Order is immediately enforceable, with the 
result that, in accordance with what was stated in the Cypriot Freezing Order, 
that order applies to third parties such as UBP. For reasons which I have 
previously given, I cannot accept that that is t he case. It follows that nor can I 
accept Mr Samek QC's follow -on submission that the Claimant was entitled to 
serve the Cypriot Freezing Order on UBP on the basis that, as he put it, the 
Claimant was entitled to "serve an order on somebody who is subject to it" . 
UBP was not, and is not at the moment, subject to the Cypriot Freezing Order. 
Whether UBP or any other third party becomes subject to the Cypriot Freezing 
Order will depend on the outcome of the Defendants' appeal due to be heard 
next month.  
The C laimant's post -hearing reliance on an additional authority  
41. Before coming on to state my conclusion, I need first to address an authority 
which was drawn to my attention in the hour or so before I was due to hand 
down judgment on Friday 17 June 
 2016.
  This is the recent decision of the 
CJEU in Rudolfs Meroni v Recoletos Ltd (Case C -559/14)  which was reached 
on 25 May 
 2016.
  Mr Samek QC explained that it was only on Monday 13 
June 
 2016,
  and so following submissions on Friday 10 June 
 2016,
  that he 
and Mr McWilliams became aware of the Meroni  case. At that point, I was 
told that Mr Samek QC and Mr McWilliams took the view that there was no 
need to refer me to the decision because, in their then assessment, (i) there is 
nothing in it which is adverse to any of the submissions which they had made 
to me at the hearing on 10 June 
 2016,
  and (ii) it is a case concerned 
principally with the application of the public policy ground in relat ion to 
challenging recognition and enforcement of a judgment and so is not directly 
in point. Mr Samek QC explained, however, that, upon further consideration 
and in the light of the terms of the draft judgment which I had sent to the 
parties first thing o n the morning of Wednesday 15 June 
 2016,
  he and Mr 
McWilliams had changed their mind, considering that I should be made aware 
of the authority after all. On this basis, in an email to my clerk timed at 8.12 
am on Friday 17 June 
 2016,
  Mr Samek QC invited me not to hand down 
judgment as planned at 9.30 am that very day, but instead to defer the handing 
down of judgment at that hearing in order to give Mr Malek QC an 
opportunity to make submissions in relation to the decision and to enable me 
to consider those submissions and the authority before handing down 
judgment.  
42. It was regrettable that this should have been what happened. It was clear to 
me, having read what Mr Samek QC and Mr McWilliams had to say in their 
8.12 am email, that I would have to do as requested and defer the handing 
down of judgment. Mr Malek QC hims elf acknowledged at the abortive hand -
down hearing that this was the almost inevitable consequence of the Meroni  
case having only just been drawn to my (and his) attention. It is particularly 
regrettable, as I explained to Mr Samek QC at the hearing, that,  having 
become aware of the authority on Monday 13 June 
 2016
  and having then 
received my draft judgment two days later, he and Mr McWilliams did not at 
that stage send the case to me. I make no criticism of Mr Samek QC and Mr 
McWilliams for not be ing aware of the Meroni  case until after the hearing on 
Friday 10 June 
 2016.
  Nor do I criticise Mr Samek QC and Mr McWilliams 
for deciding on Monday 13 June 
 2016
  that the authority did not need to be 
cited to me as it was a matter for them to form a view about what was 
appropriate in that regard. However, I do consider that the au thority ought to 
have been drawn to my attention after the draft judgment was received in view 
of the reasons given as to why it was provided to me two days later on the 
morning of the hand -down: those reasons applied as much on Wednesday 15 
June 
 2016
  as they did on Friday 17 June 
 2016.
  Had the authority been 
drawn to my attention  earlier, I would quite likely have been able to obtain Mr 
Malek QC's and Mr Evans's submissions in writing, so enabling me to produce 
a final judgment which could have been handed down, as envisaged, on Friday 
17 June 
 2016.  In the event, I was only able to hear what Mr Malek QC had to 
say about the authority at the hearing itself, hence the deferral of the handing 
down and my having to spend further time in relation to the judgment.  
43. It is against this background that I turn now to consider the Meroni  case and 
whether it changes my analysis and conclusions as set out in this judgment. As 
I shall explain, I do not consider that the authority changes matters. In the 
Meroni  case, legal proceedings were brought by Recoletos Ltd ag ainst various 
parties (Aivars Lembergs, Olafs Berkis, Igors Skoks and Genadijs Ševcovs), 
with an order for provisional and protective measures being made by the 
Commercial Court in London, initially on an ex parte  basis and then after a 
'with notice' heari ng. In particular, the order froze assets belonging to Mr 
Lembergs and contained wording as follows:  
"The terms of this order will affect the following persons in a country or state 
outside the jurisdiction of this court:  
… 
(c) any other person, only to t he extent that this order is declared  
enforceable by or is enforced by a court in that country or state."  
Recoletos Ltd subsequently lodged an application with the Ventspils tiesa 
(Ventspils Court, Latvia) for a declaration that the contested order (the o rder 
made at the 'with notice' hearing) was enforceable (presumably under Article 
38 of the Judgments Regulation) and for enforcement of the order to be 
ensured by means of interim measures (presumably under Article 47). The 
former application was allowed by the Ventspils tiesa but not the latter. On 
appeal by a third party, a Mr Rudolfs Meroni, the Kurzemes apgabaltiesa 
(Regional Court of Kurzeme) rejected the argument that recognition and 
enforcement of the freezing order made by the Commercial Court was 
contrary to public policy because it infringed property rights of third persons 
not party to the action before the Commercial Court. Mr Meroni subsequently 
lodged a cross -appeal before the Augstakas tiesas Civillietu departaments 
(Supreme Court, Civil Divi sion, Latvia) seeking to have the decision of the 
Kurzemes apgabaltiesa set aside. The Augstakas tiesas Civillietu departaments 
(Supreme Court, Civil Division) decided to stay the proceedings and to refer 
certain questions to the CJEU for a preliminary rul ing. One of these questions 
was this:  
"(1) Must Article 34(1) of Regulation No 44/2001 be interpreted as meaning 
that, in the context of proceedings for the recognition of a foreign judgment, 
infringement of the rights of persons who are not parties to the  main 
proceedings may constitute grounds for applying the public policy clause 
contained in Article 34(1) of Regulation No 44/2001 and for refusing to 
recognise the foreign judgment in so far as it affects persons who are not 
parties to the main proceeding s?" 
44. The CJEU decided that since the third party, Mr Meroni, had the right under 
the freezing order to appear, there was no absence of protection for the third 
party. The CJEU explained its reasoning as follows:  
"49. In the main proceedings, it is clear fr om the order for reference that the 
contested order has no legal effect on a third person until he has received 
notice of it and that it is for the applicants seeking to enforce the order to 
ensure that the third persons concerned are duly notified of the order and to 
prove that that notification has indeed taken place. Furthermore, once a third 
person not party to the proceedings before the court of the State of origin has 
been notified of the order, he is entitled to challenge that order before that 
court  and request that it be varied or set aside.  
50. That system of judicial protection reflects the requirements laid down by 
the Court in its judgment of 2 April 2009 in Gambazzi (C -394/07, 
EU:C:2009:219 , paragraphs 42 and 44), with regard to procedural 
guarantees giving any third persons concerned a genuine opportunity of 
challenging a measure adopted by a court of the State of origin. It follows that 
that syst em cannot be regarded as a breach of Article 47 of the Charter.  
… 
54. In the light of all the foregoing considerations, the answer to the question 
referred is that Article  34(1) of Regulation No  44/2001, considered in the light 
of Article  47 of the Charter , must be interpreted as meaning that, in 
circumstances such as those at issue in the main proceedings, the recognition 
and enforcement of an order issued by a court of a Member State, without a 
prior hearing of a third person whose rights may be affected by that order, 
cannot be regarded as manifestly contrary to public policy in the Member 
State in which enforcement is sought or manifestly contrary to the right to a 
fair trial within the meaning of those provisions, in so far as that third person 
is entit led to assert his rights before that court."  
45. Mr Samek QC submitted that the Meroni  case is supportive of his submissions 
for two essential reasons. First, he highlighted that there is no suggestion in 
the Meroni  case that the freezing order made by the Com mercial Court ceased 
to be enforceable or effective in view of the appeal brought against its 
recognition in Latvia after it had been declared enforceable. Secondly, Mr 
Samek QC suggested that it is apparent from what is stated at [49] that 
notification of  the freezing order to third persons is not a measure of 
enforcement, observing that it was not argued by Mr Meroni, the third party in 
that case, that the notification and service of the freezing order on him was an 
infringement of the Judgments Regulatio n. His position was that, on the 
contrary, the paragraph suggests that notification to the third party and proof 
of the same are steps which are necessarily preparatory to taking an 
enforcement measure, and that notification does not itself amount to 
enfor cement.  
46. I do not agree with Mr Samek QC about either of these two points. As to the 
first of Mr Samek QC's points, I agree with Mr Malek QC when he submitted 
that the Meroni  case does not assist since the enforceability point was not the 
subject of the de cision and there is nothing to indicate that any argument was 
put forward which dealt with the question which arises in the present case. 
This leaves the second point made by Mr Samek QC. If anything, it seems to 
me that what is stated at [49] supports the  Defendants' position more than it 
does the Claimant's position. The reference to it being "for the applicants 
seeking to enforce the order to ensure that the third persons concerned are 
duly notified of the order" confirms that it is notification (or serv ice) of the 
worldwide freezing order which makes it effective as against third parties and 
that this is why an applicant "seeking to enforce"  it must notify (or serve) the 
freezing order on third parties. In these circumstances, in my view, consistent 
with the reasoning which I have set out earlier in this judgment, notification or 
service itself amounts to the carrying into effect, and so the enforcement, of a 
worldwide freezing order. That seems to me to be all the more the case when 
(as happened in the p resent case) that notification or service is accompanied 
by threats of contempt for any failure to comply. I acknowledge that, if 
contempt proceedings are brought, that will entail enforcement also. This does 
not mean, however, that in the case of a worldw ide freezing order the 
involvement of the Court through contempt proceedings is the only means by 
which that type of order can be carried into effect and enforced. I do not 
accept, in short, that in a case concerning a worldwide freezing order it is only 
when contempt proceedings are initiated, and not before, that a measure of 
enforcement can be regarded as having been taken.  
47. I would lastly also observe that what was done in the Meroni  case was that 
Recoletos Ltd applied not only for a declaration of enfo rceability (as the 
Claimant has done in the present case) but also for an interim protective 
measure (as the Claimant has not done in the present case). This, Mr Malek 
QC submitted and I agree, underpins the appropriateness of that being the 
right approach  to adopt in a case where the "judgment"  sought to be enforced 
is a worldwide freezing order.  
Conclusion  
48. In conclusion, therefore, my decision is:  
(1) that the Cypriot Freezing Order did not become immediately fully effective 
and enforceable on the making of the Registration Order but, the Defendants 
having brought an appeal against the Registration Order, will only become 
fully effective and enforceable on determination of that appeal; and  
(2) that,  in view of the nature of the underlying order with which the 
Registration Order is concerned (the Cypriot Freezing Order), "measures of 
enforcement"  (as referred to in paragraph 4 of the Registration Order) includes 
service of the Cypriot Freezing Order o n, and/or notification of its terms to, 
third parties in order to give effect to the terms of the Cypriot Freezing Order 
as a judgment of the Queen's Bench Division of the High Court of Justice of 
England and Wales.  
49. The precise form of order which is appro priate to reflect the terms of this 
judgment is a matter which will be addressed when the judgment is handed 
down. The parties are invited, in advance of that hearing, to try to agree a form 
of order.  
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