Cyprus: Methods Of Litigation And Dispute Resolution In Cyprus
Cyprus: Methods Of Litigation And Dispute Resolution In Cyprus
INTRODUCTION TO THE CYPRIOT LEGAL SYSTEM & CIVIL PROCEDURE
The island of Cyprus became a British colony when Turkey occupied and then ceded Cyprus to the English Government. Cyprus was under British rule from 1878 until 1960, when the island acquired its independency.
As a result of British rule, the English legal system was introduced in Cyprus and many laws were enacted in an effort to import the doctrines of common law and equity into Cyprus. The adoption of the Criminal Code, the Contract Law and the Civil Wrongs Law constitute clear examples of this effort.
In addition, practical and wide considerations advocated the preservation of the English legal system after 1960, when Cyprus became independent. By virtue of the provisions of s. 29(l)(b) of the Courts of Justice Law (14/60), all Courts apply the Constitution of the Republic, the laws which have been retained by virtue of Article 188 of the Constitution, the principles of Common Law and Equity and the English Laws which were applicable in Cyprus before 1960.
It is thus clear that the Cyprus legal system is based on its English counterpart. English case-law is closely followed and all statutes regulating business matters and procedure are based essentially on English laws.
Cyprus inherited many elements of its legal system from the United Kingdom, including the presumption of innocence, the right to due process and the right to appeal. Throughout Cyprus, the right to a fair public trial is provided for in law and generally accorded in practice. Defendants have the right to be present at their trial, to be represented by counsel at public expense for those who cannot afford this, to confront witnesses and to present evidence in their own defence. Most laws are officially translated into English.
Most criminal and civil cases begin in district courts, from which appeals are made to the Supreme Court. No special courts exist for security or political offences.
One major difference between the English and the Cypriot legal system is that under the latter, there is a written Constitution, which is the supreme law of the country.
The human rights aspect of the Constitution is based on the European Convention of Human Rights and its application is based on US and European Constitutional Law Principles.
The Supreme Court, which pronounces final judgment on administrative law matters, follows the French Droit Administratif principles.
Since 1 May 2004, Cyprus has been a full member of the European Union and as a result European Law supersedes Cyprus Law in case of any conflict.
The Republic of Cyprus is also a signatory to many international treaties and conventions. Civil procedure in Cyprus is governed by the Civil Procedure Rules.
CIVIL COURT STRUCTURE
The civil court system in Cyprus includes first instance courts and the Supreme Court. The Supreme Court is at the top of the pyramid of judicial power and all other courts of first instance are subordinate to the Supreme Court. By virtue of the provisions of Article 146 of the Constitution, the Supreme Court of Cyprus has exclusive jurisdiction to judicially review every administrative act, decision or omission. Such jurisdiction covers the whole realm of governmental and administrative action in the public sphere, but excludes acts, decisions or omissions by public authorities relating to the private rights of individuals.
The Supreme Court has jurisdiction to hear and determine all appeals from all inferior courts in civil and criminal matters. The Court can uphold, vary, set aside or order the retrial of a case as it sees fit. The Court can draw its own inferences from the facts outlined by the trial Court and in certain exceptional cases, it may receive further evidence.
First Instance Courts which deal with civil procedures include the District Courts, the Rent Control Tribunal, the Industrial Tribunal and the Family Courts. Each of the six towns of Cyprus has its own District Court. The Famagusta and Kyrenia District Courts are under Turkish occupation so their jurisdictions have been taken over by the Nicosia and Larnaca courts respectively.
Each District Court has jurisdiction to hear and determine all civil actions, where the cause of action has arisen wholly or in part within the limits of the district where the Court is established, or where the Defendant, at the time when the action was filed, resides or conducts his business within the boundaries of the specific district.
The Family Courts have jurisdiction to take up petitions concerning the dissolution of marriage and matters relating to parental support, maintenance, adoption and property relations between spouses, provided that the parties reside in the Republic.
With regard to the Rent Control Tribunals (there are now three Rent Control Tribunals), these are the tribunals which have jurisdiction to try any disputes arising from the application of the Rent Control Laws. Industrial Tribunals have jurisdiction to hear applications by employees for unjustified dismissal and redundancy payments.
A First Instance Court is also a Military Court which has jurisdiction to try military offences under the Criminal Code and any other offence committed by members of the armed forces.
MAIN STAGES IN CIVIL PROCEEDINGS
The main stages in civil proceedings are as follows:
Filing a writ of summons, generally indorsed or specially indorsed, for service of a writ of summons to the Defendants. Filing of a Note of Appearance by the Defendant within 10 days from the time of service.
If the Defendant disputes the jurisdiction, he must apply for leave to file a conditional appearance. If the Defendant is outside the jurisdiction, the Plaintiff must first apply for leave to seal the writ and then for leave to serve it outside the jurisdiction. If a generally indorsed statement of claim is filed, then a statement of claim must be filed within ten days of an appearance.
The Defendant must file his statement of defence within 14 days after filing an appearance if a specially indorsed writ of summons is filed, or 14 days after the statement of claim if a generally indorsed writ of summons is filed.
The Plaintiff may file a reply within 7 days after receiving the defence, but it is not compulsory. If the Defendant has a counterclaim, the Plaintiff will file a reply to and defence against the counterclaim within 14 days of the counterclaim.
Once the pleadings close, any party is entitled to apply to the court for a hearing date. The Registrar fixes the matter for directions and the judge decides when to fix the matter for hearing.
During the trial, both parties produce evidence and their submissions so that a judgment may be issued.
EXCLUSIVE JURISDICTION CLAUSES
Cyprus follows the English private international common law principle regarding exclusive jurisdiction clauses.
As a general rule, when the parties submit their disputes to the exclusive jurisdiction of a foreign court by including an exclusive jurisdiction clause, in their agreement, the Cyprus courts will expect the parties to abide by their contract. Having said this though, these courts have the inherent discretion to disregard an exclusive jurisdiction clause.
In cases where a Plaintiff files a legal action in Cyprus in breach of an exclusive jurisdiction clause and the Defendant applies for a stay, the court is not bound to stay the proceedings. The court may refuse to stay the proceedings if the Plaintiff argues a strong case for not staying the Cyprus proceedings.
The criteria that the court will take into consideration in order to decide whether or not the procedure will be stayed are outlined in The Eleftheria, (1969) 2All ER, The Fehram (1958) 1 All ER 233, Trendex Trading Corporation 641 and Another V Credit Suisse (1980) 3 All ER, and they have been adopted in various Cypriot cases, such as Jadranska Slobodna Plovidba v. Photiades and Co. (1965) 1 C.L.R. 58•, Cyprus Phassouri Plantations Co. Ltd. v. Adriatica (1985) 1 C.L.R. 290•, Demstar Limited v. Zim Israel Navigation Co. Ltd (1991) I.C.L.R. 620. See also Dicey and Morris on the Conflict of Laws, 12th edition, volume 1 1993.
According to Lord Denning in The Fehram (1958) 1 All ER 333, the judge, when deciding upon whether or not to stay the proceedings, must ask himself whether the dispute is “… a matter which properly belongs to the courts of this country”.
The main principles which have been established by the authorities have been summarised by Brandon J. in The Eleftheria, p.65 as follows: “(I) where Plaintiffs sue in England in breach of an agreement to refer disputes to a foreign court, and the Defendants apply for a stay, the English court, assuming the claim to be otherwise within its jurisdiction, is not bound to grant a stay but has a discretion whether to do so or not. (II) The discretion should be exercised by granting a stay unless strong cause for not doing so is shown. (III) The burden of proving such strong cause is on the Plaintiffs. (IV) In exercising its discretion, the court should take into account all the circumstances of the particular case. (V) In particular, but without prejudice to (IV), the following matters, where they arise, may properly be regarded: (a) in what country the evidence on the issues of fact is situated, or more readily available, and the effect of that on the relative convenience and expense of trials between the English and foreign courts; (b) whether the law of the foreign court applies and, if so, whether it differs from English law in any material respects; (c) to which country either party is connected, and how closely; (d) whether the Defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages; and (e) whether the Plaintiffs would be prejudiced by having to sue in the foreign court because they would (i) be deprived of security for that claim, (ii) be unable to enforce any judgment obtained, (iii) be faced with a time-bar not applicable in England, or (iv) for political, racial, religious or other reasons be unlikely to get a fair trial”.
After the introduction of Council Regulation No. 44/2001, the courts of the Member States must respect the jurisdiction clause of an agreement where the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship. The agreed jurisdiction is exclusive unless the parties have agreed otherwise. However, according to Regulation 44/2001 in cases where an agreement is concluded by parties, none of whom is domiciled in a Member State, the courts of other Member States do not have jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction.
In addition, where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seized must on its own motion stay its proceedings until the jurisdiction of the court first seized is established and decline jurisdiction in favour of that court.
COSTS OF CIVIL COURT PROCEEDINGS
The costs in legal proceedings generally depend on the complexity of the case and the time consumed and they vary according to the lawyers involved. There are general criteria in the Advocates Law, according to which lawyers may charge their clients. There are also statutory regulations according to which there are minimum charges for each stage of the litigation, depending on the scale of the claim. As a general rule, the costs follow the event. That is, the winning party is allowed to claim his legal costs from his opponent. However, the costs which are taxed by the Registrar in favour of the winning party do not always cover the fees that are paid to his lawyer.
THE FUNDING OF LITIGATION IN CYPRUS
Legal Aid Law 2002 has been implemented in Cyprus Directive 2002/8/EC to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes and confers the right upon any individual to ask for Legal Aid from the State if that individual is financially unable to pay his/her legal costs in a judicial process.
The Legal Aid Procedure Rules of 2003 provide for costs regarding legal aid cases.
Under Legal Aid Law, legal aid is provided in the following situations: 1 Criminal proceedings for crimes or offences for which the law provides for imprisonment exceeding one year. 2 Civil and criminal proceedings for specified violations of human rights. 3 Proceedings relating to Family and Matrimonial Law disputes. 4 Cross-border disputes.
Order 60 of the Civil Procedure Rules provides that a Plaintiff (and, in respect of a counter-claim which is not merely in the nature of a set-off, a Defendant) ordinarily resident outside Cyprus or a Member State of the European Union may be ordered to give security for costs, though he may be temporarily resident in Cyprus or in a European Union Member State.
In actions brought by persons resident outside Cyprus or the EU, when the Plaintiff’s claim is based on a judgment or order or negotiable instrument, it is up to the Court’s discretion to ask the Plaintiff to give security for costs. Where the Court orders security for costs to be given, the proceedings in the action are stayed until such security is given. In the event of the security not being given by the appointed time, the action may be dismissed.
In Cyprus, it is against the rules of professional conduct to work with a contingency fee arrangement.
BEFORE PROCEEDINGS COMMENCE
In Cyprus, there are no pre-action proceedings that a party is obliged to follow before he files his legal action but as a matter of general practice, a Plaintiff will send a legal notice to his opponent before he proceeds with any litigation.
The Limitation of Actions Law, Cap. 15, sets down various limitation periods depending on the nature of the claim. This Law provides a limitation period of fifteen years with regard to claims in respect of bonds and mortgages; twelve years with regard to claims to estate; six years for claims with regard to bank debts and for any other cause of action, a period six years. The Limitation of Actions Law was suspended by a series of laws due to political conflicts and the Turkish invasion of Cyprus in 1974. Now the suspension period only applies to claims relating to movable or immovable assets in the area of Northern Cyprus, which is occupied by Turkish Troops [see the Limitation of Actions (Temporary provisions) Law 110(1)/2002]. With regard to torts, the Civil Wrongs Law provides for a three-year limitation period.
Time limits are treated under Cypriot law as a procedural law issue and give the Defendant right to file a preliminary objection requesting the rejection of the action against him if the claim has not been filed within the specified time limit.
In Cyprus, proceedings are commenced by filing a writ of summons with the Registrar at the competent district court and they are served through an authorised court server within one year of the date when the action was filed.
Under certain circumstances, the Plaintiff may apply for an order for a substitute service.
If the Defendants are outside the jurisdiction, the Plaintiff must apply for leave to seal the writ of summons and for leave to serve it outside the jurisdiction by post or by publishing the writ of summons in one or two newspapers in the country where the Defendant resides.
Foreign proceedings in Cyprus may be served in the manner that is permitted by the country where the proceedings are instituted. In Cyprus, any party may only apply for an interim remedy after filing the legal action.
The conditions for granting an interim injunction are set out in Courts of Justice Law 14/60 which confers power upon the Court, while exercising its civil jurisdiction, to grant an injunction if there appears to be a probability that the Plaintiff is entitled to relief and if it will be difficult or impossible to do complete justice at a later stage without granting an interlocutory injunction. Section 9 of Civil Procedure Law (Cap 6) confers power upon the Court, upon an application being made by any party, to issue an injunction without notice to the other party (ex parte) upon proof of urgency or other specific circumstances.
The parties may file ex parte applications in cases where the matter is very urgent, without serving notice to the other parties or by summons if the matter is not considered as being urgent. Interim orders may be issued against the Defendant for the sequestration, preservation, custody, sale, detention, or inspection of any property in his name or to direct that the Defendant be restrained from parting with any immovable property registered in his name.
Among the interim remedies available are freezing orders (mareva injunctions), search orders or prohibiting injunctions, such as an order forbidding a party from selling certain counterfeit products in intellectual property cases.
According to the Civil Procedure Rules of Cyprus Order 19, r.4, every pleading shall only contain a statement in the form of a summary of the material facts upon which the claimant is basing his claim; it shall not contain the evidence by which the material facts are to be proven. It must also state and show grounds for the particular kind of relief claimed.
Where necessary, a pleading shall be divided up into paragraphs and numbered consecutively. With regard to dates, sums and numbers, these shall be expressed in figures, not words. It is therefore clear that the claimant’s pleadings should only include summarised material allegations of facts, not any law upon which the claimant seeks to rely or any legal conclusions. However, in some cases, it is necessary to include details in respect of specific matters.
According to Order 19, r.5, if the claimant seeks relief of a claim regarding misrepresentation or fraud or breach of trust or wilful default or undue influence, then the claimant should give details of those matters.
Where the Plaintiff is seeking relief in respect of several distinct claims or causes of complaint which are founded upon separate and distinct grounds, they shall be stated separately and distinctly.
The facts belonging to the respective claims or causes of complaint should be stated separately, so as to show upon which facts each cause of action is based, in respect of which facts each form or relief is being claimed. The issue of the amendment of pleadings is governed by Order 25 of the Civil Procedure Rules, according to which the alteration or amendment of a pleading may be allowed by the Court at any stage of the proceedings within a time limit, in such manner and on such terms as may be fair and necessary for the purpose of determining the issues between the parties.
A party who has been granted an order for leave to amend his pleading must do so within the time limit provided in the order. Otherwise, he must amend his pleading within fifteen days of the date of the order unless an extension of time is granted by the Court. The amended pleading must be delivered to the opposite party with an office copy of the order granting the leave for amendment within the allowed time limit. Where the Court finds that the applicant has unreasonably delayed filing his application for amendment, then the Court may reject the amendment.
DEFENDING A CLAIM
According to the Civil Procedure Rules of Cyprus, Order 19, r.4, every pleading must only contain a statement in the form of a summary of the material facts upon which the Defendant is relying for his defence; it must not contain the evidence through which the material facts are to be proven. Where necessary, a pleading shall be divided up into paragraphs, numbered consecutively. With regard to dates, sums and numbers, these shall be expressed in figures, not in words.
Subject to the provisions of Order 19, a statement of defence must not only include a general denial of the grounds alleged by the statement of claim, but must also deal specifically with each allegation of fact, the truth of which is not admissible, except damages. Thus the denial of an allegation in a statement of defence must be accompanied with an answer to the point of substance.
A Defendant in an action can bring a counter-claim against the claims of the Plaintiff and any such claim has the same effect as a cross-action.
The time limit within which the statement of defence has to be served according to Order 21 of the Civil Procedure Rules, in a case where a Defendant has filed an appearance, is fourteen days from the time fixed for appearance or from the delivery of the statement of claim, whichever is the latest, unless the Court allows an extension of the time limit or in the case of an action in which the writ of summons has been specially indorsed under Order 2, r.6, a summons for judgment under Order 18 is served by the Plaintiff in the meantime.
If the Defendant does not file an appearance or defence within the prescribed limits, then the Plaintiff may file an application for a judgment in default. Following the application, the matter is fixed for proof and on that day, the Plaintiff may prove his case, either by filing an affidavit or by giving oral evidence.
The judgment in default can be set aside by the judge if the Defendant has good reasons for not filing his defence and he shows that he has a good defence.
The Defendant may dispute the jurisdiction by requesting leave to file a conditional appearance and then he can file an application to stay the proceedings because of lack of jurisdiction. The most common grounds for disputing jurisdiction are a lack of jurisdiction or the pending of the same case in a Court of another State or the existence of an exclusive jurisdiction clause in the disputed agreement. If the Defendant omits to file a conditional appearance, as prescribed by the Civil Procedure Rules, he will not be entitled to dispute the jurisdiction. In particular, according to the Supreme Court’s decisions in A.L. Metal Trading Ltd v G.J. Magdon Ltd Civil Appeal 10992, 19/12/2001 and Papakokkinou v Landbroke Group PLC and others (1995) 1 CLR 1090, a party may dispute jurisdiction by obtaining leave from the Court giving directions for filing an application of stay within a given time limit or by filing the application for a stay at the same time as entering a conditional appearance.
JOINDER & CONSOLIDATION
According to the Civil Procedure Rules a person may be joined into an ongoing action as a Plaintiff on condition that the right to relief arises from same transaction. Where plaintiffs bring separate actions, actions may be joined where a common question of law or fact arises in these actions (see Order 9).
In addition, Order 9 provides that a plaintiff has the right to join as co-defendant any person against whom he has the right to relief.
The Civil Procedure Rules (Order 14) also provides that when two or more actions are pending in the same Court, whether by the same or different plaintiffs against the same or different defendants, and the claims of these actions involve such a common question of law or fact which renders it desirable that the actions should be consolidated, the Court has the discretion to order the consolidation of these actions.
Where a plaintiff or defendant is added, the writ of summons and/or the pleadings must be amended accordingly.
An interested party may also apply to the court for leave to intervene under common law principles.
Under the Civil Procedure Rules (Order 14), in actions brought by the same persons against different Defendants in respect of connected causes of action by different Plaintiffs against the same Defendant arising out of the same incident, the Court can exercise its discretionary powers to order consolidation, and generally speaking, when the Plaintiffs could have joined in one action under the provisions of Order 9 of our Civil Procedure Rules. Consolidation may be ordered by the Court provided that it appears that common questions of law or fact of sufficient importance in proportion to the rest of the matters at issue make it desirable that the actions be heard together.
Under the Civil Procedure Rules (Order 30 r.2 (g)), the Cyprus Courts have the discretion to order split trials, either on their own initiative or upon application by the parties in a case where this is in the interests of justice.
DUTIES & POWERS OF THE COURTS
The Cyprus Courts apply a scale allocation system in which the actions before the Courts are allocated according to the value of the claim.
The scales are as follows: up to CYP5; from CYP5 to CYP10; from CYP10 to CYP25; from CYP25 to CYP50; from CYP50 to CYP250; from CYP250 to CYP1,000; from CYP1,000 to CYP5,000; from CYP5,000 to CYP25,000; from CYP25,000 to CYP50,000; from CYP50,000 to CYP250,000; from CYP250,000 to CYP1,000,000; and from CYP1,000,000 and above.
The Courts of Justice Law 14/60 determines three ranks of District Court Judges; these are District Judges, Higher District Judges and Precedents of District Courts. According to Law 14/60, District Judges may judge issues, the value of which does not exceed CYP50,000; Higher District Judges have jurisdiction to try claims not exceeding CYP250,000; and, Precedents of District Courts are empowered to try any claim, irrespective of its value.
The Cyprus Courts have inherent jurisdiction to control their procedure to ensure that their proceedings are not used to achieve injustice. This discretionary power of the Courts to manage cases before them is called a Summons for Directions (Order 30 r.2) under which the Court may:
make such order with regard to admissions of facts and of documents as may seem necessary or desirable with regard to the issues raised in the pleadings;
direct that any particular fact or facts may be proven by an affidavit, or that the affidavit of any witness may be read at the trial on such conditions as the Court or Judge may think reasonable, or that any witness whose attendance in Court ought for some sufficient ground to be dispensed with be examined before a Commissioner or Examiner;
record any consent of the parties, either wholly excluding their right of appeal or limiting it to questions of law only;
direct either party to apply to the Registrar within a specified time to fix the case for trial and/or direct the Registrar to fix it at short notice; or
make any other such order with respect to the proceeding, to be taken in the action, and as to the costs thereof, as may seem necessary or desirable with a view to saving time and expense.
The interim applications available to the parties are:
security for costs;
amendment of pleadings;
striking out pleadings;
discovery and inspection of documents;
better and further particulars; interim injunctions;
and an Anton Piller Order. Under the Civil Procedure Rules, the Cyprus Courts can award cost orders against the party who disobeys its directions, or makes a strike out order or draws adverse inferences in appropriate circumstances.
In case a party breaches an injunction and is in contempt of court, this is punishable by imprisonment or sequestration.
Under the Civil Procedure Rules (Order 19 r.26 & Order 27 r.3) the Cyprus Courts have the power to strike out part of a pleading, strike out the whole pleading and enter a judgment or even dismiss an action.
The grounds for striking out a statement of case are the following:
irrelevant, frivolous, vexatious, scandalous proceedings; no reasonable cause of action; tendency to prejudice, embarrass or delay the fair trial of the action; or abuse of the process of the Court. Under the Civil Procedure Rules (Order 18), the Cyprus Courts can enter a summary judgment in favour of the Plaintiff without the need to prove his case at trial.
This is possible where the Plaintiff can show that there is no defence. The application should be made in due course. In case the Defendant can prove that he has a “bona fide” defence, then the Court may give him conditional or unconditional leave to defend. Otherwise, the Court may issue a judgment for the Plaintiff or this might be subject to a stay of execution pending the trial of a counterclaim. Finally, the Court may dismiss the application.
Under the Civil Procedure Rules (Order 15), the Plaintiff may, at any time prior to the receipt of the Defendant’s defence, by giving notice in writing, wholly discontinue his action against all or any of the Defendants or withdraw any part or parts of his alleged cause of complaint, and thereupon, he shall pay the Defendant’s costs of the action, or if the action is not wholly discontinued, the costs occasioned by the matter so withdrawn. The Plaintiff can also discontinue his action following receipt of the Defendant’s pleaded defence, before taking any other proceedings in the action, save any interlocutory application, he may discontinue without leave and may bring a second action. He must, however, pay the costs of the first action or the second action will be stayed.
DISCLOSURE & PRIVILEDGE
Under the Civil Procedure Rules (Order 28) a party to litigious proceedings may apply to the Court for an order requiring the other party, within a period of time from that date, to make discovery on oath of the documents which are or have been in their possession or power relating to the matters in question in the action and to inspect the documents set out in the affidavit for discovery.
This procedure is called “Discovery and Inspection” and subject to claims for privilege and admissibility, each party may use these documents to support his case. If a party ordered to disclose documents fails to do so, he cannot use any document he failed to disclose or allow it to be inspected as evidence on his behalf in the action, unless the Court is satisfied that he had sufficient excuse for failing to do so.
Documents not material to the case need not be disclosed. In Cyprus, the categories of privilege with regard to civil proceedings are as follows: Documents that are confidential information between lawyer and client for purposes of the litigation (litigation privilege). Confidential information between lawyer and client (legal professional privilege). Documents that tend to self-incriminate or subject someone to a penalty.
Any “without prejudice” communications, either orally or in writing. These categories of documents, although they must be disclosed, are nevertheless privileged from inspection. Under the Civil Procedure Rules (Order 32), a third party may be summoned to produce a document without being summoned to give evidence. The third party summoned to produce such a document shall be deemed to have complied with the summons if he causes the document to be produced, instead of attending personally to produce it. Under the Civil Procedure Rules, the Court’s role in disclosure in Civil Procedure is to hear applications by the Parties for the “Discovery and Inspection” of documents and decide whether or not discovery is necessary at that stage of the cause or matter, or issue such an order, either generally or limited to certain classes of documents, at its discretion. With the exception of privileged documents, there are no restrictions with regard to the use of documents obtained by disclosure in Cyprus.
Under Cyprus law, evidence consists of information by which certain facts are proven or disproven.
These facts are subdivided into three categories: facts at issue; relevant facts.
Evidence of such facts is also called “circumstantial evidence”; and collateral facts;
Types of evidence include: oral evidence (witnesses on oath, expert witnesses, hearsay evidence); documentary evidence (“public” and “private” documents); and real evidence (inspection of physical objects by the court); With regard to expert evidence, in particular, the opinion of an expert is generally admissible: whenever an issue comprises a subject of which knowledge can only be acquired by special training or experience; whenever the area concerned constitutes an established area of expertise; and/or whenever the expert witness has made a special study of the subject, or acquired special evidence therein.
Witnesses normally give oral evidence usually on oath or affirmation. Following a recent amendment of Cyprus’ evidence law, a witness can now make a written witness statement. Witnesses giving evidence at trial are cross-examined before the court by the opposite party and re-examined by the party calling him, and after reexamination, they may be questioned by the Court. Witnesses are served with a witness summons in order to attend for examination, or to produce any document. In case a witness has been duly summoned but refuses to attend the Court, it may issue a warrant of arrest compelling him to appear before it.
Under the Civil Procedure Rules (Order 36), the Cyprus courts may order that: any particular fact or facts be proven by an affidavit; the affidavit of any witness may be read at the hearing or trial; any witness whose attendance in Court ought for some sufficient cause to be dispensed with be examined by interrogators or otherwise before a commissioner or examiner; and where any witness is in a country with which a Convention in this regard has been or shall be extended to Cyprus, the Court may order such a witness to be examined before the competent Court or authority of such country or before any person appointed by such a Court or authority. The Cyprus Courts also have the power to make orders for the discovery and inspection of document.
JUDGMENTS & ORDERS
The Cyprus Courts have the power to issue Judgments in Default and Summary Judgments. A court judgment can be with regard to liquidated or unliquidated demands or may be an order for one of the parties to perform its outstanding obligations under a contract or declaratory judgment (determining rights in the actual circumstances of which the court has cognisance).
A variety of orders are available in the Cyprus courts, such as: Mareva injunctions (restraining a party from removing his assets out of the jurisdiction), prohibitory injunctions (prohibiting a party from doing an act, mandatory injunctions (ordering a party to perform an act); Anton Pillar orders (enabling the Plaintiff to secure the preservation of relevant evidence which might otherwise be destroyed by the Defendant); and Mandamus orders (commanding the Defendant to fulfill any public duty in the fulfillment of which the Plaintiff is personally interested).
The Cyprus courts have the power to award damages for loss suffered, including financial loss. They are also empowered to award punitive and exemplary damages under certain circumstances. Further, in a monetary judgment involving a contract, the Court usually awards interest, as provided for in the contract or from the date when the judgment is given, as provided by the relevant legislation. With regard to the costs, the principle is that the successful litigant is awarded an order against the unsuccessful litigant to pay the costs of the litigation.
A domestic judgment may be enforced: by seizure and sale of movable property; by sale of immovable property; by attachment and sequestration; by attachment of debt or property; by writ of possession of the land ordered to be delivered to the judgment creditor; by writ of delivery of the goods ordered to be delivered to the judgment creditor; by committal for breach of an order or undertaking; by registration of a charging order over the immovable property of the judgment debtor (memo) or over his chattels; or by bankruptcy proceedings against the judgment debtor.
The enforcement of a foreign judgment is governed by bilateral or multilateral treaties to which Cyprus is a party. With regard to the registration of foreign judgments the Foreign Judgments, (Reciprocal Enforcement) Law, 1935, Cap. 10 is applicable.
Further, Cyprus is party to Council Regulation (EC) no. 44/2001 on jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters which provides for the enforcement of judgments throughout the European Union. Cyprus is also party to Council Regulation (EC) no. 805/2004 on creating a European Enforcement Order for uncontested claims, which provides that when a judgment has been certified as a European Enforcement Order by the Court of origin, it should, for enforcement purposes, be treated as if it had been delivered in the Member State in which enforcement is sought. Under the Civil Procedure Rules (Order 35), an appeal arising from any interlocutory order, or from an order, final or interlocutory, in any matter that is not an action, must be filed within fourteen days of the date of the judgment or decision and an appeal against a judgment on the merits must be filed within six weeks of the date of the judgment.
The only method of dispute resolution in Cyprus other than litigation is arbitration. In order for a dispute to be referred to arbitration, there must be an agreement between the parties, which must contain an arbitration clause. In case the parties commence legal proceedings in any Court against the Arbitration Agreement, the Courts have the power to stay these proceedings and refer the case to be tried by an arbitrator.
However, this power is discretionary and if the Courts are satisfied that there are good and sufficient reasons why the matter in dispute should not be referred to arbitration, then they will not exercise their power. In case the dispute is referred to arbitration, then any arbitration award can be enforced by registration as a Court judgment.
The registration may be effected by an application by summons being filed by the creditor which, however, can be opposed by the debtor by raising grounds of defence with regard to the validity of the award. When the arbitration award is finally registered, then it is considered to be a Court judgment and can be executed by the same methods as Court judgments.
All matters relating to Arbitration proceedings in Cyprus are governed by the Arbitration Law, Cap. 4, which applies to domestic arbitration; the International Commercial Arbitration Law 101/1987, which applies to international arbitration; and the Labour Dispute Law, Cap. 187, which applies to labour arbitration. In Cyprus, all commercial matters, including competition law, are arbitrable where there is an arbitration agreement between the parties.
Disputes concerning criminal and family matters are non-arbitrable. There are no specific dispute resolution institutions in Cyprus. The arbitration court is a private tribunal of the parties’ own choice. Arbitration awards, after they are registered and enforced, are then considered as Court judgments: they are binding and can be executed by the same methods as Court judgments.
TRENDS & DEVELOPMENTS
The use of arbitration proceedings has increased in recent years and it is expected that these will take place increasingly frequently. Currently, the trend is to use arbitration in specialised cases, especially in building contract disputes. In recent years, judges in Cyprus have been more reluctant to proceed with the hearing of a case where specialised or technical matters or scientific issues, which require specialised and particular knowledge, are involved and as a result they usually recommend that parties appoint an arbitrator in order to examine the disputed issue. The judge will usually follow the opinion and/or decision of the appointed arbitrator.