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Charles Samek QC and James McWilliams Successful in the Court of Appeal in the Cyprus Popular Bank and Vgenopoulos Litigation

Charles Samek QC and James McWilliams, instructed by DLA Piper (UK) LLP, appeared for Cyprus Popular Bank (“CPB”) in its successful appeal from the decision of Picken J in Cyprus Popular Bank v Vgenopoulos & Ors [2017] QB 453. The litigation arises out of a €3.79 billion claim against the now deceased Greek tycoon Andreas Vgenopoulos and others following the collapse of Cyprus’ second largest bank during the Cypriot financial crisis.

The appeal raised two points of law of practical and wide-ranging importance on which there was no direct English or European authority, namely:

• the status and effect of a foreign worldwide freezing order registered as a final judgment in this jurisdiction pending determination of any appeal against the registration of that judgment; and
• what constitutes a “measure of enforcement” of a worldwide freezing order for the purposes of the Judgments Regulation (EC) No 44/2201. 

The case was important for a number of reasons, including:

• providing guidance for third party financial institutions in determining whether or not they were obliged to comply with a registered foreign worldwide freezing order, pending any appeal against registration and in the face of instructions to the contrary from their customer;
• clarifying the meaning of a “measure of enforcement”, and so providing guidance as to what a judgment creditor can and cannot do while an appeal against registration is pending; and
• providing guidance for a party with the benefit of an English worldwide freezing order as to whether notification or service of the same on third parties abroad might entail a breach of the usual undertaking not to “enforce” that order abroad without the permission of the court (following the Dadourian guidelines (from Dadourian Group Int’l Inc v Simms [2006] 1 WLR 2499, a case in which Charles acted throughout)).

Allowing CPB’s appeal on all grounds and reversing the decision of Picken J below, the Court of Appeal (McCombe, Flaux & Holroyde LJJ)) [2018] EWCA Civ 1) held that:

• Upon registration at the High Court in this jurisdiction, a judgment of a foreign court would be of “the same force and effect” as if it had been given by the High Court in this jurisdiction, and that was so even if the foreign order was a worldwide freezing order rather than a simple money judgment. As such, a foreign worldwide freezing order would be fully effective and enforceable immediately on its registration.
• Notification of the fact of a freezing order to a third party did not amount to a “measure of enforcement” of that freezing order as a matter of English law, even if it was accompanied by a penal notice and a request that it be complied with. It might be a step necessary for subsequent enforcement, but it was not enforcement per se.

Charles is ranked by Chambers and Partners as a leading QC in commercial dispute resolution and fraud (civil), describing him as: “outstanding advocate. He has real presence in court and you can see that the judges really listen to him. He came across really well”; “extremely bright, hard-working and responsive”; “very clear in terms of his thinking, advice and advocacy”; and “a fantastically hands-on, very user-friendly and talented advocate”. Charles is shortly to appear before the Supreme Court in JSC BTA Bank v Khrapunov litigation on an appeal from the Court of Appeal, reported at [2017] 2 WLR 1563, concerning whether breaches of court orders can constitute unlawful means for the purpose of the tort of conspiracy and whether the place of the event giving rise to the damage within the meaning of the tort jurisdiction gateway in Art. 5.3 of the Lugano Convention is the place where an alleged conspiracy was hatched or the place where it was executed.

James has been ranked as one of the top ten commercial juniors under eight years’ call at the Bar for two consecutive years. He has been described as: “Bright, tenacious and not afraid of a challenge – a star of the future” (Legal 500, 2016); “A rising star with huge potential” (Legal 500, 2017); and is regarded as “Incredibly user-friendly, thoughtful and forensic in his approach to commercial disputes” and “In terms of call, he is beyond his years in the way he presents his advice” (Chambers and Partners, 2018).

Charles and James have worked together on several important cases in recent years, including Abela v Baadarani (No.2) [2018] 1 WLR 2018 (instructed by Child & Child LLP) which established for the first time that there is jurisdiction to make a search order against a third party even when no substantive proceedings are contemplated against that third party.