30 November -0001

The Cyprus Supreme Court pointed out, in the well known case of Odysseos Andreas v. A. Pieris Estates Ltd and Another [1] that "an injunction has been, historically, one of the principal weapons of equity to suppress conduct that should not be countenanced by a court of equity". As a matter of fact, injunctions can be issued for a lot and different reasons; they can be issued, for example, in order to freeze assets in and outside of the jurisdiction, to preserve evidence, to aid the search and discovery of information, to restrain legal proceedings. Furthermore, there are the prohibitory injunctions and the mandatory injunctions and also the perpetual injunctions and the interlocutory ones.

An injunction can be issued after a relevant application is filed in the context of a main procedure, such as an action commenced by a writ of summons or a writ of summons specially indorsed or even after an originating summons is issued. The said application for the issuance of the injunction is supported by an affidavit made by a person who personally knows the facts of the case or who specifies the source of his knowledge. The respondent may then file an objection supported by an affidavit in which he/she should specify the grounds for objection. Furthermore, the Court, upon request, may, for good reason, permit the filing of additional affidavits. The hearing of the application is conducted on the basis of the facts stated in the application or in the affidavits reserving the right for cross-examination of the affiant.

Section 32(1) of the Courts of Justice Law (Law 14/1960) aims to define the remedial powers of the Court to grant relief of an equitable nature, namely to issue injunctions and appoint receivers. [2] Section 32 provides that every Court, in the exercise of its civil jurisdiction, has the power to grant an injunction (interlocutory, perpetual or mandatory) or appoint a receiver in all cases in which it appears to the Court just or convenient so to do.

Furthermore, as the court stated in the case Odysseos Andreas v. A. Pieris Estates Ltd and Another [3] "the justice and convenience of the case is not the sole consideration to which the Court should play heed in the case of an interlocutory injunction, and no such injunction should be granted, unless all of the following conditions are satisfied:
1) A serious question arises to be tried at the hearing.
2) There appears to be "a probability" that plaintiff is entitled to relief and, lastly,
3) Unless it shall be difficult or impossible to do complete justice at a later stage without granting an interlocutory injunction".
The issued interlocutory injunction may be under such terms and conditions as the Court thinks just and the Court may at any time, on reasonable cause, annul or modify the said injunction.

Analyzing the conditions
The above-mentioned conditions have been explained in detail by the Supreme Court in the case of Odysseos Andreas v. A. Pieris Estates Ltd and Another.[4]

  • A serious question arises to be tried at the hearing

    Regarding this condition, the Supreme Court stated that there is no reason in principle or on authority to interpret "a serious question to be tried at the hearing" as requiring anything beyond the disclosure of an arguable case on the strength of the pleadings. It is clear that the Court will not decide on the merits of the case at this preliminary stage.

  • There appears to be ''a probability'' that the plaintiff is entitled to relief
    The Court stated that "it is fair to assume that the second requirement relates to something other than the complexion of the pleaded case of the applicant and that could not be anything other than the evidential strength of the case of the plaintiff. Furthermore, the standard required for the plaintiff to overcome the evidential hurdle is not very high. He is only required to establish a ''probability'' of success. The concept of a ''probability'' imports something more than a mere possibility but something much less than the ''balance of probabilities'', the standard required for proof of a civil action. A legal probability is something different from a mathematical probability. ''A probability'', in the context of the proviso to section 32(1) requires the applicant to demonstrate that he has a visible chance of success".
  • Unless it shall be difficult or impossible to do complete justice at a later stage without granting an interlocutory injunction.The third condition is closely related to the question of the adequacy of the remedy of damages, in the light of the facts of the case[5] and may also include other factors in addition to irreparable damage.[6] The criterion for the issuance of an interim order is the inability to do complete justice at a later stage. The meaning of justice is not related to the narrow perception of material damage, but to the wider protection of the rights of the applicant.[7]

    Finally, when all the aforementioned conditions are taken into consideration, the Court must ultimately decide whether it is just or convenient to grant the injunction.[8]

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Orders issued on an ex parte basis
Under article 9 of Cap. 6 (Civil Procedure Law), the Courts have jurisdiction to issue an order on an ex parte basis i.e without notification of the respondent. For that purpose, the Court must be satisfied that there are exceptional and urgent circumstances.
Article 9 (2) of Cap. 6 (Civil Procedure Law), provides that before the issuance of the injunction on the ex parte basis, "the Court shall require the person applying for it to enter into a recognizance, with or without a surety or sureties as the Court thinks fit, as security for his being answerable in damages to the person against whom the order is sought". This might be a personal guarantee up to a specified amount and it depends on the scale of action.

After its issuance on the ex parte basis, the order is fixed as "returnable" within a few days and it must be served to the respondent, who may appear to the Court and file an objection. Then, the Court will decide whether the order should remain in force until the final settlement of the dispute or whether it should be annulled. It must be noted, that an injunction issued on an ex parte basis shall not remain in force for a period longer than necessary.

When an applicant applies ex parte, it is crucial to disclose to the Court all material facts and/or documents in relation to the case. This duty covers not only facts that the applicant knows, but also facts which the applicant would have known with reasonable care.[9] Failure to disclose such material issues may result to the cancellation of the injunction.

Appeal
According to Order 35, Rule 2 of the Civil Procedures Rules "...no appeal from any interlocutory order, or from an order, whether final or interlocutory, in any matter not being an action, shall be brought after the expiration of fourteen days, and no other appeal shall be brought after the expiration of six weeks, unless the Court or Judge, at the time of making the order or at any time subsequently, or the Court of Appeal shall enlarge the time. The said respective periods shall be calculated from the time that the judgment or order becomes binding on the intending appellant, or in the case of the refusal of an application, from the date of such refusal. Such deposit or other security for the costs to be occasioned by any appeal shall be made or given as may be directed under special circumstances by the Court of Appeal".

Types of Injunctions
"Mareva" Injunctions
"Mareva" injunctions which are named after the well known leading decision Mareva Compania Naviera S.A. v. International Bulkcarriers SA[10] are freezing injunctions that restrain a person from dealing with or using his/her assets. The purpose of a "Mareva" injunction is to ensure that the judgment will be satisfied and effectively enforced. As the Supreme Court stated in Pastella Marine Co Ltd v National Iranian Tanker Co Ltd[11] "the discretion of the Court to issue a Mareva injunction must be exercised with great circumspection and always with due regard with the specific aims of the law, notably in aid to the process of execution designed to forestall action likely to undermine the efficacy of the judicial process".

One of the first case in which the Cyprus Supreme Court endorsed the English case law regarding the jurisdiction of Cyprus Courts to issue "Mareva" injunctions was Nemitsas Industries Ltd v. S.& S. Maritime Lines Ltd and Others.[12] In that case, the Supreme Court, in its admiralty jurisdiction, granted an injunction restraining the Defendants from withdrawing money from a bank until trial of the action..

In the case Metro Shipping Travel Ltd v Global Cruises SA[13] the Supreme Court, in its admiralty jurisdiction, stated that "a "Mareva" injunction, is an injunction by which a defendant, whether a person or a legal entity, foreign or locally-based, is restrained from removing assets that he possesses within the jurisdiction, pending the action and subsequent execution of the judgment obtained by the plaintiffs or a counter-claiming defendant".
However in 2007 in the case of Seamark Consultancy Services Limited v. Joseph P. Lasala and others[14] the Supreme Court stated that the Court of First Instance could extend the "Mareva" type injunction that it has issued, to assets outside of the jurisdiction. As the Court noted, section 32 of Law 14/1960 sets no other restriction except from the three preconditions.
"Anton Piller" Orders

The "Anton Piller" orders aim to preserve evidence and to prevent its destruction. With an "Anton Piller" order, a defendant is ordered to permit the claimant to enter his/her premises for certain purposes. In the leading English case Anton Piller K.G. v. Manufacturing Processes Ltd,[15] which was cited in a number of Cypriot cases,[16] the following pre-conditions were stated:


(a) "There must be an extremely strong prima facie case.
(b) The damage, potential or actual, must be very serious for the applicant.
(c) There must be clear evidence that the defendants have in their possession incriminating documents or things.
(d) There is a real possibility that they may destroy such material before any application inter partes can be made".
"Anton Piller" orders are very drastic in nature and a party may apply for the issuance of that order, inter alia, to find and preserve evidence which is in the possession of the defendant and the defendant is likely to destroy such evidence or inform others to destroy them. Furthermore, the Courts must be very cautious when granting this type of orders so as to ensure that the person, against whom the order is issued, is also protected. The risk of damage decreases when the conditions of that order are detailed, uniform and standardized.[17]
"Chabra" Orders
The Supreme Court in the case of Re Helington Commodities Ltd and others[18] affirmed the jurisdiction of Cyprus Courts to issue "Chabra" type orders.[19] These orders are issued "where there are grounds, to believe that a co-defendant is in a possession, or control, of assets to which the principal defendant is beneficially entitled".[20]

In the same case, the principles set out in the English cases T.S.B Private Bank International S.A. v. Chabra and another[21] and Yukong Line Ltd v. Rendsburg Investments Corporation and others[22] were endorsed by the Supreme Court. The Supreme Court quoted the below extract from the English case Yukong Line Ltd v. Rendsburg Investments Corporation and others reaffirming that "although the Court has no jurisdiction to grant an interlocutory "Mareva" injunction in favour of a plaintiff who has no good arguable cause of action against a sole defendant, it has power to grant such an injunction against a co-defendant against whom no direct cause of action lies, provided that the claim for the injunction is ancillary and incidental to the plaintiff's cause of action against that co-defendant".

"Norwich Pharmacal" orders

"Norwich Pharmacal" orders aid the search and discovery of information and especially information which is necessary in order to identify a wrongdoer. Furthermore, they assist the finding of evidence which could be used in a potential court action.

Cyprus Courts follow the principle stated in Norwich Pharmacal Co and others v. Commissioners and Custom Excise[24] that "if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration".

In the case of Avila Management Services Limited and others v. Frantisek Stepanek and others[25] the Supreme Court referred to case Mitsui & Co Ltd v. Nexen Petroleum UK Ltd[26] where the conditions for the issuance of a "Norwich Pharmacal" order had been summarized. Specifically, the conditions that have to be satisfied is that "(i) a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer; (ii) there must be the need for an order to enable action to be brought against the ultimate wrongdoer; and (iii) the person against whom the order is sought must: (a) be mixed up in so as to have facilitated the wrongdoing; and (b) be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued".

Anti-suit Injunctions
Generally, Cyprus Courts, as a matter of comity, avoid issuing orders under which a person is restrained from commencing or continuing proceedings in a foreign court or forum . Furthermore, Cyprus Courts state that anti-suit injunctions must be issued sparingly and the plaintiff must have a very strong case.[28]

Finally, it must be noted that in Case C-185/07, Allianz SpA, formerly Riunione Adriatica di Sicurtà SpA, Generali Assicurazioni Generali SpA, v. West Tankers Inc, the European Court of Justice stated that "it is incompatible with Council Regulation (EC) No. 44/2001 for a court of a Member State to make an order to restrain a person from commencing or continuing proceedings before the courts of another Member State on the ground that such proceedings would be contrary to an arbitration agreement".
Injunctions, Proceedings in EU member states and International arbitration proceedings
Injunctions or interim orders could be issued not only in support of proceedings which are pending before Cyprus Courts but also in support of proceedings pending in EU member states. Specifically, under article 31 of the EC Regulation 44/2001 "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 substance of the matter".

Furthermore, according to article 9 of the International Commercial Arbitration Law (Law 101/1987), the Court, upon an application by a party, may grant an order at any time before or during the arbitration proceedings.

Competent Courts for commercial matters
In Cyprus there are no specific courts for commercial matters. These matters fall within the jurisdiction of the District Courts. District Courts are competent for all civil actions, except from matters that fall within the jurisdiction of the Rent Control Tribunal, the Industrial Disputes Tribunal and the Family Court. District Courts are composed by the Presidents of the District Court, the Senior District Judges and the District Judges.

Notes:

1. (1982) 1 CLR 557.
2. Pastella Marine Co Ltd v. National Iranian Tanker Co Ltd (1987) 1 CLR 583.
3. (1982) 1 CLR 557.

4. (1982) 1 CLR 557.
5. Odysseos Andreas v. A. Pieris Estates Ltd and Another (1982) 1 CLR 557.
6. Papastratis Loucas v. Glafkos Petrides (1979) 1 C.L.R. 231.
7. M & CH Mitsingas Trading Ltd and others v. The Timberland Co. (1997) 1 AAD 1791.
8. Odysseos Andreas v. A. Pieris Estates Ltd and Another (1982) 1 CLR 557.

9. Akis allos Grigoris N. Grigoriou and others v. Christinas Stavrou Christoforou and others (1995) 1 AAD 248.
10. Court of Appeal, June 23, 1975.
11. (1987) 1 CLR 583.

12. (1976) 1 C.L.R. 302. See also ABP Holdings ltd and others v. Andrea Kitalidi and others (No. 2) (1994) 1 AAD 694.
13. (1989) 1 CLR 182.
14.(2007) 1 AAD 162.
15.(1976) Ch 55.
16. In re Christoforos Pelekanos and Others (1989) 1 CLR 467.
17. In re Neophytou Grigoriadi, (2013), Appeal no. 10/2011, dated 14/06/2013.

18. (2009) 1 AAD 926.
19. Stockman Interhold SA ν. Arricano Trading Limited and others, Action No. 219/12, Distict Court of Limassol, dated 08/05/2012.
20. Yukong Line Ltd v. Rendsburg Investments Corporation and others (2001) Lloyd's Rep.113.
21. (1992) 1 W.L.R 231.
22. (2001) Lloyd's Rep.113.
23. Penderhill Holdings Limited and others v. Ioanni Kloukina, Appeals no. 319/2011 and 320/2011, dated 13/01/2014, Maria Nikolaevna Maximova v. Novexco (Cyprus) Limited, Action No. 8332/2012, Nicosia District Court, dated 30/05/2014.
24. (1973) 2 All E.R. 943
25. (2012) Appeal No. 54/2012, dated 27/06/2012.
26. (2005) EWHC 625.

27. Eugenios Zinonos v. Elenis Zisaki (2009) 1 AAD 661.
28. Alexey Suprunov and other v. Natasa Agathokleous and other, Action No. 870/2014, Paphos District Court, dated 26/06/2014.

 

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