Injunctions (orders) – A Powerful Weapon to Safeguard Your Case

Introduction

Injunctions may be issued as a final remedy (at the end of a case) or during the claim to retain the status quo until the final judgment is issued (called interim or interlocutory injunctions). According to the case Odysseos Andreas v. A. Pieris Estates Ltd and Another (1982) 1 CLR 557, 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 of the above, the injunctions can be issued for a variety of reasons. For example, they can be issued in order to freeze assets in and outside of the jurisdiction, to aid the search and discovery of information, to restrain legal proceedings or to preserve evidence.

Procedure

According to Cyprus Legislation an injunction can be issued further to the filing of the relevant application, 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 application shall be supported by an affidavit made by a person who personally knows the facts of the case. An Injunction can be filled either (i) ex parte, i.e without notification to the respondent according to the Civil Procedure Law, Cap. 6 article 9 or with (ii) notification to the respondent.

1. Ex parte – Without notification to the respondent

For the issuance of an ex parte application, the Court must be satisfied that there are exceptional and urgent circumstances. Further it is important to note that according to the Article 9 (2) of Cap. 6 (Civil Procedure Law), before the issuance of the injunction on an ex parte basis, “the Court shall require the person applying for it to enter into a recognisance, 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 the hearing of the appellant and the issuance of the injunction order on an 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 as he has the right to file an objection. After the filing of the objection, 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 is important to note that an appellant applies ex parte, is obliged 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.

2. With notification to the respondent

As of the above, if the facts of the case do not satisfy the exceptional and urgent circumstances, the appellant has the right to file application with a notification to the respondent. The respondent may then file an objection supported by an affidavit in which he/she should specify the grounds for objection.

In both case scenarios, when the respondent files an objection, the court will set the case for hearing, in order to decide about the issuance of the injunction.

Conditions for the issuance

Section 32(1) of the Courts of Justice Law (Law 14/1960) 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. According to the precedent case of Odysseos Andreas v. A. Pieris Estates Ltd and Another (1982) 1 CLR 557, s.32 Courts of Justice Law (14/60) confers power to the Court to grant an injunction “in all cases in which it appears to the Court just or convenient so to do”. The following conditions must also be satisfied:

(a)   A serious question arises to be tried at the hearing.

(b)  There appears to be ”a probability” that the plaintiff is entitled to relief and lastly

(c)   It shall be difficult or impossible to do complete justice at a later stage without granting an interlocutory injunction.

As of the above, when all the aforementioned conditions are taken into consideration, the Court must ultimately decide whether it is just or convenient to grant the injunction.

Most common interlocutory injunctions (interim orders)

The most common interim orders that are issued by Cyprus Courts include, but are not limited, to the followings:

1. Freezing Orders (Mareva) of Assets

This kind of order aim to preserve the applicant’s rights and ensure that the latter will be able to execute any future decision that will be issued in his favour, a freezing order prevents and prohibits the respondent from disposing, transferring or otherwise alienating his assets and/or any assets that are specifically stated in such order.

2. Chabra Order

A Chabra injunction is a freezing order against a third party which is not a party to the substantive proceedings at hand, and against whom the claimant has no available cause of action.

3. Anton Piller Order

An Anton Piller, commonly known as a search order, is an interim order which aims to prevent the respondent from interfering or destroying any documents or data or evidence which are essential for the main legal proceedings. In other words the Anton Piller injunction is  a court order that provides the right to search premises and seize evidence without prior warning. This is intended to prevent the destruction of relevant evidence, particularly in cases of alleged trademark, copyright or patent infringements.

4. Norwich Pharmacal Order

A Norwich Pharmacal order requires a respondent to disclose certain documents or information to the applicant. The main purpose of a Norwich Pharmacal Order, enable the Applicant to obtain any information as to the identity of a wrongdoer, discover and preserve any significant evidence for the case of the applicant or even trace and preserve information or assets. Such order is most commonly addressed to a third party that has been innocently involved in the wrongdoing.

5. Gagging Order

An injunction, often known as a gagging order, is issued by the court to to restrict and prevent the respondent from disclosing the filing or any information concerning the legal proceedings to any third party and/or to the public. Practically, it is sought in conjunction with other types of interim orders. Often the subject is a high profile member of public like a celebrity or high-powered business person, and the person will be anonymised.

6. Quia timet Order

An injunction often known as a Quia timet order, is an exceptional remedy granted even in cases where no actionable wrong has been committed, where the claimant can clearly establish the reasonableness of his “fear” that unless the injunction is issued, the actionable wrong will occur by the defendant. Its main function is to prevent the occurrence of an actionable wrong, or to prevent repetition of an actionable wrong.

Conclusion

In the light of the above, the injunctions are a crucial step and a powerful weapon to safeguard your case. Consequently, is essential for applicants to act reasonably, conscionably and without undue delay.