Litigation 2019 Second Edition

Last Updated December 05, 2019

Cyprus

Law and Practice

Authors



Markides, Markides & Co. LLC is one of the oldest firms in Cyprus, originating with the establishment in 1933 of the office of Frixos Markides, regarded as a doyen of the legal profession of Cyprus. From 1 January 2012, the business of the firm was taken over by Markides, Markides and Co. LLC, the firm is the sole shareholder of the latter company. The company consists of nine partners, six associate lawyers, six paralegals, a manageress, a librarian and a secretary. The litigation and legal consultations department of the firm operates under the supervision of Alecos Markides, a former Attorney General of Cyprus. The IP department, one of the best in Cyprus, was created from scratch by the firm’s senior partner, Hermione Markides.

The legal system of Cyprus is mainly based on English common law and equity; save that constitutional and administrative law are derived from civil law.

The Cyprus legal order follows a mainly adversarial model. The legal process may be conducted orally or in written form.

Cyprus court structure consists of two tiers. All courts, except the Supreme Court, are first instance courts. The Supreme Court is the appellate court, but it is, also, vested with original jurisdiction.

As to the first tier, the District Courts are competent to try civil actions and criminal proceedings and have the power to impose a sentence not exceeding five years imprisonment; there are, also, other courts, exercising exclusive or parallel jurisdiction. These include:

  • the Assize Courts, having unlimited jurisdiction to try criminal cases;
  • the Industrial Disputes Tribunal, with jurisdiction to determine matters arising from disputes concerning employment;
  • the Family Courts, with jurisdiction to determine petitions for divorce, maintenance, custody of children and property disputes between spouses;
  • the Rent Control Court, with jurisdiction over recovery of possession, determination of fair rent and other incidental matters in respect of controlled premises; and
  • the Military Court, for trying criminal offences committed by military personnel.

The second tier is the Supreme Court which, apart from its appellate jurisdiction, has first instance powers:

  • to issue the prerogative writs of habeas corpus, mandamus, certiorari, quo warranto and prohibition;
  • to try some admiralty cases;
  • to try election petitions in respect of Presidential and Parliamentary elections; and                       
  • to opine on constitutional matters, for example, upon reference by the President of the Republic of Cyprus, made before promulgation, in relation to the compatibility of any law enacted by the House of Representatives with the constitution.

As a general rule, court proceedings are conducted in public unless, for reasons of specific circumstance, the court orders otherwise.

Only the parties themselves, and their lawyers, enjoy access to the files of the proceedings. A third party, though, may be granted access with the court’s leave.

A party may appear in person, but usually they are represented by a lawyer holding a licence to practice.

Qualified lawyers of an EU member state, can be registered as EU lawyers, but they can appear before the courts only jointly with a qualified Cyprus lawyer. However, upon completion of three years' practice in Cyprus they may be registered as full members of the Bar Council.

Qualified lawyers from a non-EU jurisdiction can be given a right of audience before the courts in specific case(s), if they obtain prior leave of the Bar Council and are accompanied by a local qualified advocate.

Litigation is, as a rule, funded by the parties themselves; however, third-party funding is not expressly prohibited by Cyprus law.

In a case concerning assignment of a cause of action, the court looked for guidance to English law which prohibits “champerty and maintenance”.

Clearly, however, the case of subrogation of the insurer into the assured’s shoes may be differentiated. The insurance company, steps into the shoes of the assured and may commence and pursue proceedings in the latter’s name against the person whose acts or omissions triggered the risk under the insurance policy.

Funding regularly takes place in favour of an insured defendant, who, under the relevant contract of insurance, the insurance company is liable to indemnify and pay itself any amount to be awarded to that defendant.

Legal aid by the Republic of Cyprus is another instance of funding (see Law 165(I)/2002). Such legal aid is granted only in criminal proceedings; extradition; violations of human rights; human trafficking, sexual abuse and child-pornography; and proceedings regarding the sale of mortgaged property.

Subject to the limitations discussed in 2.1 Third-Party Litigation Funding, all types of lawsuit are available for third party funding.

Third-party funding may be granted to both plaintiff and defendant.

There is no minimum or maximum amount for third-party funding.

Subject to any contractual stipulation between the parties, the funder normally pays all legal fees and expenses, relating to the case in question.

Contingency fees are contrary to the provisions of the Advocates’ Code of Conduct of Cyprus.

In addition, the agreement for payment of legal services only if a case is won in court, will be void pursuant to Cyprus's law of contract. An agreement, however, for payment of a success fee, over and above normal fees, is not prohibited.

There are no time limits on when a party involved in legal proceedings can obtain third-party funding.

No rules are imposed on the parties in relation to pre-action conduct.

The Limitation of Actions Law of 2012 (Law 66(I)/2012, as amended), governs the question of limitation; special limitations are, also, to be found in other laws.

The limitation periods vary. In the absence of a specific provision, it is ten years.

For mortgages and pawns the period is 12 years; for torts, six years; for negligence, nuisance and breach of statutory duty, three years; for defamation or malicious falsehood, one year; for contracts, six years, but, in relation to the agreed or reasonable remuneration of a lawyer, doctor, dentist, architect, civil engineer, contractor, or other independent professional, three years; bills of exchange, cheques and bonds in customary form, six years; debts from or to credit institutions or physical persons who perform financial activities and which stem from, inter alia, hire-purchase, use of a credit card and anything that relates to bank or relevant product, excluding loans, six years; actions initiated by a successor regarding a deceased person's fortune or any share thereof or regarding the validity of a will, eight years from the date of the death; and actions in relation to any judicial decision, 15 years after the decision became final.

The limitation period for any of the examples mentioned above commences upon the day of completion of the cause of action. However, for causes of action existing as of 01 January 2016, the limitation period begins from 01 January 2016 and not from the prior day of completion of the cause of action.

A counterclaim is deemed to be filed the same day as the filing of the action, if the cause of action of the counterclaim stems from the same or substantially the same facts as those of the action. Otherwise it is deemed as a separate action.

The limitation period is not triggered or, in case it has already been triggered, it is suspended in cases, inter alia, of spouses during their marriage, of parents and children during the latter’s minority and in actions concerning malice or concealment by the defendant of facts relevant to the cause of action.

The limitation period shall also be suspended, inter alia, for as long as the plaintiff has been impeded by force majeure from filing an action within the last semester of the limitation period and for as long as, within the last semester of the limitation period, the defendant – or a person for whom the defendant is liable – prevented the plaintiff from filing the action. For invalid persons or for persons who, not being invalid, have no personal representative, the limitation period is suspended for as long as they are incapable or they do not have a personal representative.

Where personal injuries or deaths arise from torts the court may, at its discretion, extend the limitation period; this power cannot be exercised after the passing of two years from the date on which the limitation period ended.

Running of the limitation period is interrupted, and the period runs ab initio if:

  • the person liable acknowledges in writing the cause of action against him or her;
  • the debtor pays more than 50% of the total debt amount, including any interest; and
  • upon initiation of arbitration proceedings.

Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, governs the matter in question.

As a general rule, persons domiciled in a member state shall, independently of their nationality, be sued in the courts of that member state.

Nonetheless, in proceedings which have as their object rights in rem in – or tenancies of – immovable property or as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or the validity of the decisions of their organs, or in proceedings concerned with the enforcement of judgments, jurisdiction is vested in the courts of the member state in which the property is situated; or in which the company, legal person or association has its seat; or in the courts of the member state in which the judgment has been, or is to be, enforced.

Subject to proceedings relating to consumers, employers and exclusive jurisdiction and prorogation of jurisdiction matters, if the defendant is not domiciled in a member state, the jurisdiction of the courts of each member state is determined by the law of that member state,.

As far as the domestic regime is concerned, the District Courts in Cyprus have civil jurisdiction to hear and decide any action, provided that:

  • the cause of action has arisen either wholly or in part within the geographical boundaries of the district in which the court is established; and
  • the defendant, or any of the defendants, at the time of the filing of the action, resides or carries on business within the district in which the court is established;

Particularly, in cases where the action relates to the disposal or sale of any immovable property or any other matter regarding immovable property, there is exclusive jurisdiction in favour of the court within the district for which that court is established.

Defendant Residing Outside Cyprus

The matter is governed by Order 6 of the Civil Procedure Rules of Cyprus (CPR). It is necessary to obtain the court’s leave for service out of the jurisdiction. This can be done, if:

  • the whole subject matter of the action is immovable property of any kind situated in Cyprus;
  • any act, deed, will, contract, obligation, or liability affecting immovable property of any kind situated in Cyprus, is sought to be construed, rectified, set aside, or enforced in the action;
  • any relief is sought against another person domiciled or ordinarily resident in Cyprus;
  • the action is for the administration of the movable property of any deceased person who died domiciled in Cyprus, or for the execution (as to property situated in Cyprus) of the trusts of any written instrument, of which the person to be served is a trustee;
  • the action is one brought to enforce, rescind, dissolve, annul, or otherwise affect a contract or to recover damages or other relief for or in respect of the breach of a contract made in Cyprus, made by or through an agent trading or residing in Cyprus on behalf of a principal trading or residing out of Cyprus, or is one brought in respect of a breach committed in Cyprus of a contract wherever made;
  • the action is founded on a civil wrong committed in Cyprus;
  • any injunction is sought as to anything to be done in Cyprus, or any nuisance in Cyprus is sought to be prevented or removed, whether damages are or are not also sought in respect thereof; or
  • any person out of Cyprus is a necessary or proper party to an action properly brought against some other person duly served in Cyprus.

Pursuant to Order 1, Rule 2 of the CPR, an action means a civil proceeding commenced by writ, or in another manner prescribed by any law or the rules of court;

Writ of Summons

As a general rule, any action before a District Court shall be commenced by a writ of summons, save where other provision is made.

A writ of summons must be either specially endorsed (containing the full statement of claim) or generally endorsed (containing only the relief and remedies sought). However, in actions for slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage and actions in which fraud is alleged by the plaintiff, the writ of summons must be generally endorsed.

Originating Summons

An initial complaint may be put forward by an originating summons.

This is used only in the cases provided by a relevant legislative provision; for example, for the determination of any question of construction arising under an instrument, or applications for rectification of the register of members of a company (for relief in cases of default in delivering documents to the Registrar of Companies).

Motion

Not in use.

Petition

A petition only be used in exhaustively enumerated instances.

According to Cyprus Law, petitions may be used, inter alia, in the ten different cases enumerated in Sections 213, 64, 54(1)(d), 69, 55 197(2), 326(6), 382(2) of the Companies Law, Chapter 113; in Order 54 of the CPR; and in Sections 4-8, 10, 11 and 15 of the Bankruptcy Law, Cap. 5.

Amendment of Pleadings

For actions filed after 01 January 2016, the possibility of amendment is regulated in conjunction with each stage of the action as follows:

  • after the filing of the writ of summons but before the service thereof, the plaintiff may at any time without the prior leave of the court amend the writ of summons;
  • after the service of the writ of summons and before the service by the plaintiff of the summons for directions, the plaintiff may once amend the writ without the prior leave of the Court; and
  • after the issue of the summons for directions, no amendment is permitted with exception of bona fide mistake in the drafting of the pleading and in cases where, to the satisfaction of the court, new facts have come into light.

The court, however, may at any time, amend any mistake or error in the proceedings, as the court deems fit, for the purposes of determining the actual issue in question. In addition, typos in pleadings or any mistake by inadvertence or omission, may at any time be rectified by the court.

Service within Cyprus Jurisdiction

Regarding the writ of summons, every defendant named therein shall be served with an official copy of the writ.

The service of the writ of summons and of the other forms in 3.4 Initial Complaint, the pleadings and every judicial document or document that the court orders to be served, shall be performed, as a general rule, by a bailiff of the court.

In any case where the court deems that, due to any reason, it is not feasible for the service to be carried out timely in the usual manner, the court may issue any order for substituted service in any manner which the court deems just.

Special provisions for service in certain special circumstances, such as in the cases of infants and mental or criminal mental patients, are in place.

Serving a Person out of Jurisdiction

As a general rule, the method of service is regulated by relevant bilateral or multilateral treaties between the Republic of Cyprus and other countries.

As for service in an EU member state, Council Regulation (EC) No 1393/2007 in relation to the service of judicial and extrajudicial documents in the other member states applies. As far as service in a non-EU member state is concerned, this can be effected pursuant to the Hague Convention of 1965 (to which Cyprus acceded) on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

Cyprus has also entered into various treaties that regulate and facilitate service of court documents.

In any event, the parties to any contract may agree that service of any writ of summons, in any action brought in respect of that contract, may be effected at any place in or out of Cyprus on any party, or any person on behalf of any party, or in any manner specified or indicated in that contract.

The first step for a defendant served with the writ of summons is to file an appearance within ten days from service; otherwise, upon plaintiff’s application, judgment by default can be issued against him or her.

The defendant, who has previously filed an appearance, shall, if the writ was specially endorsed (as discussed in 3.4 Initial Complaint), file and deliver his or her defence within 14 days from filing the appearance; or, if the writ was generally indorsed (see 3.4 Initial Complaint), he or she will wait until the plaintiff’s statement of claim is filed, in which case, he or she will have to file the defence within 14 days of filing of the statement of claim. In practice, these time limits are not followed and it is very easy to obtain extensions from the court or by consent of the opponent.

The defendant in a counterclaim shall file and deliver his or her defence within 14 days from the delivery of the counterclaim.

The plaintiff may, at his or her discretion, file a reply to the defendant’s defence (or the defendant file a reply to the defence of the plaintiff to his or her counterclaim) within seven days of the filing of the defence of the defendant (or of the plaintiff in case of counterclaim).

If the defendant fails to abide by the time limits for the filing of his or her defence, the plaintiff may apply, by summons, for judgment in default.

Collective actions are possible in Cyprus.

Special provision is made regarding trustees, executors and administrators in that they may sue, and be sued on behalf of (or as representing) the relevant property; special provision is, also, made for an infant who has no guardian authorised to bring proceedings and a person of unsound mind, whether or not a mental patient or criminal mental patient.

Class Actions

Class actions are governed by Order 9, Rule 9 of the CPR; this type of action may be used in cases where there are numerous persons having the same interest in one cause or matter. In such a case, one or more of these persons may be authorised by the court or a judge to sue or defend this cause or matter, on behalf or for the benefit of all persons so interested, subject to certain formalities being satisfied.

These formalities are very cumbersome and for this reason class actions are very rare in practice.

As a matter of practice, it is common for clients to request a cost estimate of the legal proceedings prior to the commencement of litigation.

The Court has the power to hear various applications, such as those:

  • for interim orders or interim relief (see 6 Injunctive Relief);
  • for setting aside the writ of summons for lack of jurisdiction or for disclosing no cause of action or for other irregularities, such as lack of proper service;
  • for dismissing the writ for want of prosecution, in case the plaintiff fails to file a statement of claim within the specified time limit;
  • for judgment in default either because the defendant has failed to appear or failed to deliver his or her defence, within the specified time limits;
  • for disposing of the action by virtue of a point of law raised in the pleadings, for striking out an action or a pleading for disclosing no reasonable cause of action or answer, for being frivolous or vexatious, for summary judgment, for a case stated by which the parties concur in stating the questions of law arising from the case, in the form of a special case;
  • for striking out the writ of summons on the basis that the court lacks jurisdiction to hear the case, or it is not the forum conveniens to hear the proceedings and there is a more appropriate forum for the trial to take place (the onus of proving this, is on the party making the application);
  • for striking out or staying a case because there is an agreement to refer the case to arbitration; and
  • for judgment on the basis of admission of facts made by the pleadings or otherwise.

Various other interim applications/motions may be made in relation to case management issues.

See 4.1 Interim Applications/Motions.

An application for summary judgment may be issued in case the specific requirements of Order 18 of the CPR are satisfied. These are that:

  • the writ of summons is specially indorsed;
  • the defendant has filed an appearance; and
  • the plaintiff, by affidavit made by himself or herself, or by any other person who can swear positively to the facts, verifies the cause of action and the amount claimed (if any), and states that in his or her belief there is no defence to the action.

Once these requirements are met then the defendant has to satisfy the court that he or she has a good or arguable defence to the action, otherwise a judgment may be issued for the whole or part of the claim. This procedure is meant to be used for clear cases only, where there is no defence to the action.

The timeframe for the completion of the above varies from two to nine months.

The main dispositive motions made before trial, are discussed in 4.1 Interim Applications/Motions and 4.2 Early Judgment Applications.

All persons may be joined in one action as plaintiffs, in whom any right to relief in respect of, or arising out of, the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, where if these persons brought separate actions any common question of law or fact would arise. 

All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative (Order 9, Rule4 of the CPR).

Defendants may apply for security for their costs in cases where the plaintiff resides outside the European Union (Order 60 of the CPR).

The order is discretionary, provided certain conditions are satisfied.

The award of costs on interim applications is at the discretion of the court, the general rule being that costs follow the result, (except in respect of successful applications for amendment).

Applications for judgment in default, due to the fact that they are made ex-parte (ie, without notice to the other side), are usually heard within one or two months from filing.

Urgent applications, such as applications for an interim order or an interim relief, which are made ex-parte are usually heard within one or two days from filing.

Other interim applications, which are made by summons, and to which an opposition is filed, are heard within four to nine months, depending on the complexity of the issues and the court’s workload.

Any party may apply to the court for an order directing the other party to perform an action to make discovery under oath of the documents which are or have been in their possession or power, relating to any matter in question (Order 28, Rule 1 of the CPR).

If a party fails to comply with an order of discovery, he or she cannot produce as evidence any document he or she failed to discover, unless the court is satisfied that he or she had sufficient excuse for failing to do so.

Furthermore, if a party fails to comply with an order requiring him or her to state by affidavit whether any particular document specified in an application by the other party is, or has at any time been, in his or her possession, custody or power he or she can also, if a plaintiff, be liable to have his or her action dismissed for want of prosecution, and, if a defendant, be liable to have his or her defence struck out, and to be placed in the same position, as if he or she had not filed a defence.

In principle, it is not possible to obtain discovery from third parties. However, if a third party is in possession of a relevant document, a party to the action may issue a subpoena duces tecum, under which the third party is compelled to produce the document in court.

Order 28 of the CPR governs disclosure and inspection of documents as well as the consequences of a failure to comply with a disclosure order.

There are no alternatives to the above mechanisms of discovery mentioned in 5.1 Discovery and Civil Cases and 5.2 Discovery and Third Parties.

All communication between a lawyer and his or her client is covered by legal privilege. Legal professional privilege is considered a substantive condition of the fair administration of justice.

For the successful invocation of legal professional privilege, one must first establish the existence of a lawyer-client relationship and that the communication or exchange of documents was for the purposes of provision of legal advice; the privilege also covers communication between lawyer and possible witnesses, if it occurred in the context of pending or anticipated litigation.

Apart from legal privilege, without prejudice communication between the parties, in the context of an attempt to reach an out-of-court settlement, are also protected from disclosure.

The Cyprus courts, by virtue of Section 32(1) of Law 14/1960, are empowered, while exercising their discretion, to issue an interlocutory injunction, at any stage of the proceedings, if they are satisfied that:

  • there exists a serious case to be tried on the merits;
  • there is visible chance of success, namely that the plaintiff, or defendant as a counterclaimant, is entitled to relief; and
  • that it would be difficult or impossible to do complete justice at a later stage without granting the interlocutory injunction.

If the above pre-requisites are met, the court will furthermore consider whether it is just and convenient to issue the requested order.

The Supreme Court has recognised the ability of the Cyprus courts to issue a worldwide range of interlocutory injunctions, these are set out below.

Freezing Orders

Issuance of such orders against all or specific movable (bank accounts, stock, bonds, shares, etc) and immovable property held by the defendant, preventing him or her from disposing of these assets until the final adjudication of the action.

Norwich Pharmacal Orders

Cyprus courts, adopting the principles set out in the leading cases of Norwich Pharmacal Co. & Others v Customs and Excise Commissioners [1974] AC 133 and Mitsui & Co Ltd v. Nexen Petroleum UK Ltd [2005] EWHC 625, can issue disclosure orders, if satisfied that the following conditions are met:

  • a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer;
  • there must be the need for an order to enable action to be brought against the ultimate wrongdoer or for a detailed statement of claim to be drafted against him or her; and
  • the person against whom the order is sought must:
    1. be mixed up in the wrongdoing, so as to have facilitated it; and
    2. be able, or likely to be able, to provide the information necessary to enable the ultimate wrongdoer to be sued.

Anton Piller Orders

Cyprus courts can issue search orders, following Anton Piller KG v Manufacturing Processes Ltd & Ors [1976] 1 All ER 779, whereby the defendant is ordered to allow the plaintiff’s representatives to enter into the former’s premises to search for and obtain copies of documents and other information.

For an Anton Piller Order to be issued, the court should be satisfied that:

  • the plaintiff has a prima facie case;
  • the damage caused to the plaintiff by the activities of the defendant, whether actual or probable, is very serious;
  • there is convincing evidence that the defendant possesses incriminating documents or other incriminating testimony; and
  • the likelihood of the material being destroyed by the defendant, if he or she is informed before the disclosure process bears fruit, is a real risk.

Gagging Orders

Gagging orders may be issued ancillary to Anton Piller and Norwich Pharmacal injunctions, restricting the defendant, except for the purpose of obtaining legal advice, from informing anyone of the proceedings or of the contents of the order, or warning anyone that proceedings have been or may be brought against him or her by the plaintiff.

Quia Timet Orders

A quia timet injunction is granted for the purpose of preventing what would be an actionable wrong if it were permitted to happen. Either the defendant has threatened a wrongful act or there is a real risk that, unless an injunction is granted, an actionable wrong will be committed.

Injunctions in Aid of Foreign Proceedings

According to Article 35 of the Brussels Recast Regulation, an application may be made to the Cyprus courts for those provisional, including protective, measures as may be available under Cyprus law, even if the courts of another EU member state have jurisdiction as to the substance of the matter.

Cyprus courts do not have jurisdiction to issue interim orders in aid of substantive proceedings pending in non-European countries.

There is no power to issue stand-alone interim injunctions, when there is an absence of a cause of action within the jurisdiction of Cyprus courts against a defendant.

Injunctions in Aid of Foreign Arbitration Proceedings

See 13 Arbitration.

Anti-suit Injunctions

Issuance of an anti-suit order, to prevent the initiation or promotion of a foreign proceeding which constitutes a breach of an exclusive jurisdiction clause, is possible.

The issuance of such orders is now restricted, following the case-law of the ECJ, since it was found not to be permissible within the scope of the Brussels Regulation regime.

Recent case law suggests that the issuance of anti–arbitration injunctions, namely preventing the initiation of foreign proceedings in violation of an arbitration clause, is not possible.

Appointment of a Receiver

Appointment of a receiver by the courts, to receive and manage specified assets and to deal with them according to the terms of the order is permissible. The receiver is an officer of the court, which may at any time terminate the appointment or substitute another receiver.

In accordance with Section 9 of the Civil Procedure Law, Chapter 6, it is possible to obtain – in cases of urgency or when there are special circumstances – injunctive relief upon ex parte application. The applicant should be careful not to waste any time before applying; and should bear in mind that all relevant facts, documents and correspondence should be disclosed. If not, any relief obtained ex parte, is liable to be set aside.

Cyprus Courts, when presented with a without notice (ex-parte) application, are empowered by virtue of Section 9(1) of the Civil Procedure Law (Chapter 6, as it has been amended), to issue such an injunction, notwithstanding the absence of the defendant, if, in addition to the requirements of Section 32, they are satisfied that the granting the injunction is urgently required or that there exist peculiar circumstances.

Following the issuance of an ex parte injunction, the respondent is entitled to file an opposition, and contest the validity of the injunction itself. The onus remains on the plaintiff to satisfy the court that the injunction was rightly granted. In the event the application for interim injunction remains substantially uncontested or if the court remains satisfied that such pre-requisites were satisfied, the interlocutory injunction will remain in force until the end of the hearing of the merits of the action or until any further order of the court.

According to Section 9(2) of the Civil Procedure Law, Chapter 6, before issuing an injunction without notice, the court shall require the applicant to file security for indemnifying the respondent, if the ex parte order is set aside or annulled and it is proved that the respondent suffered damages as a result of its issuance.

Following the decision of the Supreme Court in the case of Seamark Consultancy Services Ltd and others v Joseph P. Lasala and others (2007) 1 C.L.R. 162, Cyprus courts were empowered to issue worldwide freezing injunctions. In such cases, the owner of the assets will be liable for contempt of court if he or she disobeys the order.

As a general rule, an interlocutory order can be issued only against a party to an action, not directly against a non-party.

An exception to the above general rule appears to have been recognised for the purposes of freezing injunctions. In Re Nicolaou Bros Tourist Enterprises Ltd (1999) 1 C.L.R. 201, the Supreme Court of Cyprus decided that the scope of a freezing injunction can also cover and affect non-parties to an action (when this is just and convenient), which are in possession or control of a respondent’s assets (as nominees or trustees) and such third parties, notified of the injunction, are bound to do whatever they reasonably can to preserve the defendant’s assets. Examples may be banks holding assets on behalf of the respondents.

Courts are conferred with power to punish any person (party or non-party to a process) for disobedience (civil contempt) of an order of a court.

Trials of actions exceeding EUR3,000 take place through oral witness testimony, but, nowadays, witness statements prepared in advance in written form are considered to be the whole or part of examination in chief. Each witness is orally cross-examined by the opponent, then re-examined by the party who called him or her, but only in respect of matters arising out of the cross-examination.

The allegations in the pleadings are crucial, as no evidence will be allowed, if it refers to allegations not included in them. 

Following the evidence of the last witness, the court gives directions for final arguments to take place. Although final arguments can be made orally, it is now common practice for written submissions to be followed by short oral addresses; whereupon the judgment is normally reserved. Judgments ex tempore are very rarely given

Interim motions or applications are tried on affidavit evidence, with the right of the other party to cross-examine. Unless cross-examination of the affiant is to take place, oral evidence is not given.

The arguments in support of the application and the opposition are normally in written form although it is possible for the arguments to be conducted orally.

There are no jury trials in Cyprus.

The general rule is that only evidence relevant to the facts at issue is admissible in court.

Real, oral or documentary evidence is allowed.

Evidence that is unconstitutionally obtained is not admissible, but evidence illegally obtained is.

Hearsay evidence is admissible in court, although its value will be weighted by the court.

The rules of evidence are to be found in the Evidence Law, Chapter 9. There were based on, and actually introduced into Cyprus as, English common law at the time of their issue, but nowadays, by reasons of amendments in both jurisdictions, there are a lot of divergences. Chapter 9, as amended, also governs evidence in all criminal cases.

Expert evidence is allowed in court and is adduced in relation to technical, medical or other professional matters.

Hearings are conducted in open court and are normally open to the public and the press.

However, the court may decide – for reasons of national security, constitutional order, public order, public security, public interest, or for the interest of minors, or for the protection of the private life of the parties, or under special circumstances which in the opinion of the court will prejudice unfairly the interest of justice – to hold the trial in camera.

Transcripts of hearings are not available to the public but only to the parties to the proceedings.

Judges normally intervene to determine the conduct of proceedings and to decide procedural matters such as the admission of evidence in court.

It is possible for a judge to pose questions to witness in court for the purpose of clarifying matters in issue, but this intervention is not encouraged and, if abused, may constitute grounds for appeal.

The time span from the date of filing the action until the trial of a case is normally up to five or six years, depending on the court’s workload and any delaying tactics employed by any of the parties as well as the complexity of the issues involved.

The trial of a case itself takes usually from one day to nine months depending on the complexity of the case and the number of witnesses summoned to testify.

Parties in civil actions pending before the District Courts, always have the right to discuss the case, either directly or through their advocates, in order to come to an amicable settlement of the case and in this way to avoid time consuming and expensive litigation with uncertain result, without being obliged to obtain the approval of the court for negotiating in this respect.

In case the negotiations are successful, and an amicable settlement is reached, the parties have the option:

  • to withdraw the action as settled out of court, with or without costs (depending on what was agreed between the parties), in such cases, the approval of the court is not necessary;
  • to declare the settlement before the court, in which case the judge will keep minutes recording that the parties have reached a settlement and that the terms of the settlement as declared by the parties will become a rule of court, in such cases, the rule of court is considered as a simple contract agreed before the court and is not a judgment; or
  • to have a judgment by consent, in this case, the judgment can be enforced and executed in the same manner as other judgments.

In all cases, if one party is a minor, the approval of the court is always required for any settlement.

If an action is withdrawn as settled out of court, neither third parties nor the court will be notified regarding the terms of the settlement. Only the parties who have reached the settlement will know those terms

If the settlement is declared before the judge and becomes a rule of court, the terms of the settlement will not be strictly confidential but a third party cannot have free access to it.

If the settlement becomes a judgment by consent, it is not confidential. However, the general rule is that a third party cannot have access to the file of the court, save with the latter’s leave.

See 8.1 Court Approval.

Settlement agreements are subject to the provisions of the Contract Law, Chapter 149. The Contract Law contains provisions which define when a contract is valid or void or voidable, or when a contract can be revoked or rescinded.

If the settlement agreement has become a judgment by consent, the principles for setting aside judgments apply.

A litigant by his or her action (or counterclaim) may pray for various remedies and, if successful, the court may grant all or some of the requested remedies.

These remedies include:

  • damages (general, special, exemplary and punitive);
  • injunctions/orders, whether mandatory or prohibitory, permanent or temporary;
  • declarations;
  • recovery of possession of immovable property;
  • specific performance;
  • reference for a preliminary ruling to the European Court of Justice;
  • appointment of an administrator or receiver;
  • interest; and
  • costs.

Damages may be awarded by the court in different cases and for various causes of action.

The main philosophy for awarding damages is to put the victim, as far as possible, in the place he or she was before the occurrence of the event that caused the damage.

No person can be compensated twice for the same wrong.

Damages are awarded as a just and equitable compensation and remedy for violations of human rights (see Yiallouros v. Nicolaou (2001) 1CLR 558).

Compensation is payable in advance for the compulsory acquisition of property (Article 23 of the Constitution).

Damages may be awarded according to Article 146.6 of the Constitution, which provides that every person who suffers damage because of a decision, act or omission of the administrative authorities, which was annulled by the Administrative Court or the Supreme Court in its revisional jurisdiction, is entitled to just damages upon proof of the damage and that the damage was directly caused as a result of that decision, act or omission.

Damages may be awarded for violation of intellectual property rights.

Damages are, also, awarded for injuries, pain and suffering as well as for the future loss of earning capacity of the victims of torts, especially in cases of negligence. In case of death, EUR17,500 is awarded (bereavement) for the death itself, plus special damages (eg, medical bills, etc).

In case of claims by dependants (wife, children, etc), regarding the future loss of earnings of the deceased, the damages are calculated taking into consideration the claimant’s earning power and a multiplier which depends on the age of the claimant.

Special damages are awarded upon proof of the amount claimed.

The court awards general and special damages in cases of libel/defamation.

The possibility of awarding punitive damages is limited to three categories of civil wrongs:

  • civil wrongs resulting from the use of oppressive and unconstitutional conduct by government officials;
  • civil wrongs committed in gross disregard of the rights of the injured party, perpetrated in circumstances calculated to yield profit to the perpetrator; and
  • where the statute expressly permits the award of exemplary damages.

Section 33 of Law 14/1960 refers to interest and provides that the court has discretion to award interest, either as agreed between the parties or (in any other case) not exceeding the legal interest rate enforced by the law at the time.

Section 58A of the Civil Wrongs Law, Chapter 148 provides that, when damages are awarded for injuries or death as a result of a civil wrong, the court awards interest either on the whole or part of the amount of damages awarded, for the whole period or part of it, between the date that the cause of action arose and the date of the filing of the action.

Every judgment or order of a court ordering the payment of money may be executed as follows:

  • by writ of execution for the sale of movable property (Order 41 of the CPR);
  • by sale of immovable property (Order 42 of the CPR) or making the judgment a charge on the immovable property;
  • by sequestration of immovable property;
  • by writ of attachment of property in the hands of third person;
  • by garnishee proceedings; and
  • by examination by the Court, on the application of the judgment creditor, of the judgment debtor regarding his or her financial situation.

Following this examination, the court may order the judgment debtor to pay the debt in monthly instalments, cancel any fraudulent transfer of property, or order deduction of the instalment from the debtor’s salary or issue an order for writ of attachment in the hands of a third person.

Further, the judgment creditor may start bankruptcy or liquidation proceedings against the judgment debtor.

Where a judgment or order of a court of Cyprus is for recovery or delivery of possession of any immovable property, the judgment may be enforced by issuing a writ of possession (Order 43A of the CPR).

The Foreign Judgments Reciprocal Enforcement Law, Chapter 10 provides for execution of judgments issued by Commonwealth countries.

Judgment may be registered for the purpose of enforcement and execution in Cyprus, but the relevant application should be made within six years from the date of the judgment.

The Foreign Judgment (Recognition, Registration and Execution pursuant to Convention) Law 121(I)/2000 provides for the mutual recognition, registration and execution of the court judgments and arbitration awards of foreign countries which have signed conventions/treaties with the Republic of Cyprus, either bilateral or multilateral.

In the case of a judgment issued by the courts of a member state of the European Union, the provisions of Regulation (EU) No.1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and recognition of judgments in civil and commercial matters, apply as from 10 January 2015. This Regulation is binding in its entirety and directly applicable in the member states in accordance with the EU treaties.

The only appellate court in Cyprus is the Supreme Court. It has jurisdiction to hear appeals from lower civil, criminal and administrative courts.

An appeal can be brought before the Supreme Court of Cyprus in relation to:

  • any final judgment or order of a civil court;
  • any order of a prohibitory or imperative nature, or any order for the appointment of a receiver;
  • interlocutory judgments, provided they have an absolute and determinative effect on the rights of the appellant; and
  • any judgment issued by a court exercising criminal jurisdiction.

The appeal may challenge the judgment in whole or in part. All the grounds of the appeal and their reasoning must be set forth in the notice of appeal.

In civil cases, a notice of appeal must be filed and served, together with a copy of the judgment, to the interested parties within 14 days of the date of the issuance of an interlocutory order and within 42 days of the date of the issuance of a final judgment

In criminal cases, a notice of appeal must be filed within ten days of the issuance of the judgment. In cases where the prosecution wishes to appeal against an acquittal or the inadequacy of a sentence, the prior approval of the Attorney General must first be obtained. If the prosecution was conducted by the Attorney General, the appeal should be filed within 14 days.

The Supreme Court has very extensive powers in terms of examining an appeal brought before it. The hearing of the appeal is based on the record of the proceedings kept by the first instance court. The appellate court has discretion to hear or receive further evidence, but only in exceptional and rare circumstances. The appellate court can draw conclusions upon facts, issue any order that ought to have been made, and make any further or other orders as the case may require. The Supreme Court can make any order in relation to the costs of the appeal as may be just.

The appellate court has the power to order that the appealed decision be set aside wholly or partly and that a new trial shall be held in general or in respect of a certain matter.

Appeals regarding an award of costs, cannot be filed except with prior leave of the court.

See 10.4 Issues Considered by the Appeal Court.

The costs of, and incidental to, any proceedings are at the discretion of the court. As a general rule, costs follow the result of the proceedings, namely the losing party has to bear the costs of the proceedings and reimburse the successful party. The costs that are recoverable are legal fees, plus applicable VAT and necessary out of pocket expenses.

The legal fees are calculated on the basis of the existing cost scales, as provided by the CPR.

The court, when awarding a sum within the prescribed range, takes into consideration the nature, difficulty, urgency and scale of the case, the behaviour of the parties as well as the estimated time spent on the relevant task.

Costs awarded to a successful party bear legal interest from the date of filing of the action. The rate is as follows:

  • from 02 January 2008 up to 14 October 2008 – 8% annually,
  • from 15 October 2008 up to 31 December 2014 – 5.5% annually,
  • from 01 January 2015 up to 31 December 2015 – 4% annually,
  • from 01 January 2016 up to 31 December 2016 – 4% annually,
  • from 01 January 2017 up to 31 December 2017 – 3.5% annually,
  • from 01 January 2018 up to 31 December 2018 – 3.5% annually, and
  • from 01 January 2019 – 2% annually.

Alternative Dispute Resolution (ADR) is still a novel mechanism as far as Cyprus is concerned. It is too early to judge which is the most popular form of ADR in Cyprus. As far as online dispute consumer resolution is concerned, Cyprus is bound to apply Regulation (Eu) No 524/2013 of the European Parliament and of The Council of 21 May 2013.

ADR is not compulsory, nor does it form part of court proceedings (subject to Section 15 of the ADR Law).

The relevant Law in Cyprus is Law 159(I)/2012.

It should be noted that Section 15(1) of the ADR Law stipulates that, pending the litigation proceedings for the determination of a specific dispute which falls within the scope of the ADR Law, the court may at any stage of the legal proceedings, but before judgment:

  • inform the parties about the process of mediation and the possibility of resolving the dispute accordingly; or
  • adjourn the judicial proceedings, upon relevant common application by all the parties or of one party with the written consent of the other(s) party(ies), in order to allow mediation proceedings to commence.

There are several institutions offering ADR services, such as the Cyprus Arbitration and Mediation Centre, the Cyprus Eurasia Dispute Resolution and Arbitration Centre and the Cyprus Chamber of Commerce and Industry.

Arbitration of a domestic nature in Cyprus is governed by the Arbitration Law, Chapter 4; if of an international commercial nature, by the International Commercial Arbitration Law 101/1987; and if it concerns an admiralty matter, by the English Arbitration Act of 1950. Lastly, the parties to an arbitration agreement may choose to dictate which law will govern that agreement.

Matters concerning the validity of an administrative act or omission and matters relating to crimes clearly cannot be referred to arbitration. 

The court has power to stay proceedings on the grounds that the subject matter should have been referred to arbitration. It has the power to remove an arbitrator for misconduct and to set aside or refuse registration of an arbitral award. All these powers are discretionary. 

The court also has the power to set aside a non-arbitral award or to remit a case to arbitration.

To enforce an arbitral award, in both foreign and domestic cases, an application should be made to the court for registering the award; if the application is granted, the award can be enforced in the same manner as a judgment issued by the court.

The court has the power to issue provisional, including protective, measures in aid of a foreign arbitration. But it appears that the court does not have the power to issue mandatory orders directing discovery of documents.

Markides, Markides & Co. LLC

Markides House
1-1A Heroon Stree
PO Box 24325
Nicosia 1703
Cyprus

+357 2277 9900

+357 2277 8787

info@markides.com.cy www.markides.com.cy
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Markides, Markides & Co. LLC is one of the oldest firms in Cyprus, originating with the establishment in 1933 of the office of Frixos Markides, regarded as a doyen of the legal profession of Cyprus. From 1 January 2012, the business of the firm was taken over by Markides, Markides and Co. LLC, the firm is the sole shareholder of the latter company. The company consists of nine partners, six associate lawyers, six paralegals, a manageress, a librarian and a secretary. The litigation and legal consultations department of the firm operates under the supervision of Alecos Markides, a former Attorney General of Cyprus. The IP department, one of the best in Cyprus, was created from scratch by the firm’s senior partner, Hermione Markides.

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