CYPRUS: JUDICIAL SYSTEM AND COURT PROCEDURE
JUDICIAL SYSTEM AND COURT PROCEDURE
- 1. Court System
What is the structure of the civil court system?
There are two tiers of courts in Cyprus, i.e., the Supreme Court and the subordinate courts.
The Supreme Court
The Administration of Justice (Miscellaneous Provisions) Law 1964, as amended, merged the Supreme Constitutional Court and the High Court set up under the Constitution into one court, called the Supreme Court. The Supreme Court consists of 13 members, one of whom is the President. The President of the Supreme Court is primus inter pares with no second or casting vote.
The Supreme Court exercises both original and appellate civil and criminal jurisdictions. It is vested with authority as:
· The Supreme Constitutional Court;
· An Administrative Court;
· An Admiralty Court;
· An Appellate Court; and
· A court with exclusive jurisdiction to issue prerogative writs (e.g., habeas corpus, mandamus, prohibition, quo warranto, and certiorari).
No special leave to file an appeal is required. The Supreme Court, in its appellate jurisdiction, is not bound by any determination on a question of fact made by the trial court, and it has power to review all the evidence, draw its own inferences, hear or receive further evidence, and give any judgment or make any order which the circumstances of the case may justify, including an order of re-trial.
The Subordinate Courts
The subordinate courts are inferior courts. There are five types of subordinate courts in Cyprus.
The five District Courts exercise civil and criminal jurisdiction. In their civil jurisdiction, they can entertain any action whose cause arose within the district where the court is situated or in which the defendant or one of the defendants in the action resides. They also can entertain any claim which has not been specifically assigned to the jurisdiction of the Family Courts, Labour Courts, or Rent Control Courts or to the original jurisdiction of the Supreme Court.
The District Court has jurisdiction to try offences summarily whenever the punishment provided by the law does not exceed three year’s imprisonment and in certain other cases with the consent of the Attorney-General, where the punishment provided by the law does not exceed seven years; however, in the latter case, the power of the trial court is limited to a punishment not exceeding three year’s imprisonment.
Assize Courts are vested with unlimited jurisdiction to try all criminal offences and to impose punishment provided by the law. There are six Assize Courts, these being:
· Two for the district of Nicosia;
· One for each of the district of Limassol, Larnaca, Famagusta and Paphos.
Each district has its own Family Court, which has jurisdiction in all family matters including divorces, custody disputes, property provisions, and all other matters ancillary thereto.
There are two Labour Courts which is situated in Nicosia, the capital of Cyprus and Limassol. They have jurisdiction in claims concerning disputes between employers and employees.
Rent Control Courts
There are three Rent Control Courts, one for the district of Nicosia, one for the districts of Larnaca and Famagusta, and one for the districts of Limassol and Paphos. These courts have jurisdiction in claims concerning evictions, rent adjustments, and any other matter ancillary thereto which arise in relation to rented premises in the district situated within the area specified by the Rent Control Law.
- 2. Judges and Juries
What is the role of the judge and, where applicable, the jury in civil proceedings?
The trial system in Cyprus is adversarial, with the judge playing a relatively passive role, deciding on issues of fact and law after hearing evidence and submissions from the competing Parties.
All the civil cases are tried by a single judge sitting without a jury.
In Cyprus there is no right to trial by jury.
- 3. Limitation issues
What are the time limits for bringing civil claims?
In Cyprus all claims and rights of recourse to the Courts are subject to extinction by statutory time-barring. Depending on the nature of the claims, there are various prescription periods.
There was a suspension of all time-bars in respect of actions instituted on or after 21st December 1963 due to the enactment of the Law of Suspension of Limitation of Actions 57 of 1964.
The above suspension was abolished by Law 66 (1)/2013 as amended by Law 41 (1)/2013 and Law 159 (1)/2013. The limitation period defines the period in which a claim must be issued from the Court Registry. Service must usually take place within one year after issue but there is a judicial discretion to extend time for service for good reasons.
The normal time limits are six years on a contractual claim and six years on a tort claim. The time limits generally run from the date when the cause of action accrues. A two-year time limit applies to personal injury arising out from traffic accidents. The Parties can agree to suspend the running of time or alternatively the defendant can waive a time-bar defence either expressly or by not raising it in its pleadings.
- 4. Pre-action behaviour
Are there any pre-action considerations the parties should take into account?
Generally there are no required procedures prior to the commencement of civil actions. However a letter of demand sent before the filing of an action is recommended except in cases where the Plaintiff will apply for the issue of an ex-parte injunction.
Failure to send a letter of demand is not a bar to commencing legal proceedings but might have adverse cost consequences if the Court considers the Plaintiff to have acted unreasonably.
- 5. Starting proceedings
How are civil proceedings commenced?
Civil proceedings are commenced in all Cypriot courts with the issue or filing of an originating process which states the nature and extent of the claim made or the remedy or relief sought.
The forms of an originating process are the writ of summons, the application for originating summons, and the petition.
Writs are used for commencing almost all Common Law actions. There are two prescribed forms of writ, namely:
- • The form for a writ with a general endorsement; and
- • The form for a writ with a special endorsement.
The specially endorsed writ of summons has the claimant’s first pleadings included in it, and the generally writ has only a concise statement of the nature of the claim made and the relief sought.
Cyprus Civil Procedure Rules provide that the claims for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage and fraud, must be brought by a writ with a general endorsement:
A writ is issued when it is sealed by the court. Time stops running for limitation purposes on the date of issue, which also marks the beginning of the period of validity of the writ for the purpose of service.
Originating summonses are issued to invoke the court’s jurisdiction in proceedings in which the principal question is one of construction of a law, deed, will, contract, or other document or some other question of law or which are unlikely to raise any substantial dispute of fact.
The body of the summons must include a statement of the questions on which the plaintiff seeks the court’s determination of the relief or remedy claimed. Issue of originating summonses follows the procedure for issuing writs and takes effect on sealing.
Typical examples of petitions are those for bankruptcy of individuals and winding-up of companies.
Petitions are instituted in the matter of the law which gives the court the power to entertain the proceedings. Like a pleading, the body of a petition states, usually in several numbered paragraphs, the grounds on which the petitioner claims to be entitled to an order from the court. It then includes a concise statement of the relief or remedy claimed.
The Defendants’ procedural obligations in connection with the proceedings only start running once he has been served with the legal process.
A legal process may be served within Cyprus without leave of the Court. If the Defendant shall be served outside the jurisdiction, the Plaintiff shall obtain firstly an ex-parte leave, from the Court authorising such service.
Where a Defendant can be demonstrated to be evading service the Court has power to authorise “substituted” service, for example through delivery of the legal process to a person known to be in communication with the Defendant.
- 6. Timetable
What is the typical procedure and timetable for a civil claim?
It often takes two or more years to bring the case to hearing from the date of the issue of the legal process. The timetable might vary depending on the complexity of the case, and the behaviour of the litigants.
Originating summons and Petitions follow fast-tracked procedures.
The pre-trial definition of the issues between the litigants takes place by the exchange of pleadings. The plaintiff files his Statement of Claim (if the writ of summons has been generally endorsed) within 14 days from the date of the filing of the memorandum of appearance by the defendant. The defendant files his defence within 14 days from the date of the filing of the statement of claim. The plaintiff has the right to file a reply to the defence, if he considers it necessary, within seven days from the filing of the defence. Further pleadings are rarely used and, to engage in further pleadings, the leave of the court is required.
Pleadings should be confined to statements of material facts in summary form. Law and legal conclusions should not be pleaded. The primary function of pleading is to define the matters in issue which are to be decided by the court. At the trial, the parties are not entitled to canvass issues not raised in the pleadings. Pleadings may be amended by a party with the leave of the court. Amendments will usually be allowed by the court if the other party does not thereby suffer prejudice which cannot be cured by an order for costs.
A defendant with a cause of action against the plaintiff can raise it either by bringing a separate action or by counterclaiming in the same action.
A counterclaim must comply with the rules relating to the statement of claim.
As part of the purpose of pleadings is to define the issues in the action, the parties are quite justified in omitting to prove matters, which could be relevant to the case for the other side but have not been pleaded.
Indeed, strictly evidence on matters that have not been pleaded should not be adduced, and the judge must not give judgment relying on issues that are not pleaded. If it appears that the pleadings do not adequately plead the case for either or both parties, it is usually possible for the pleadings to be amended even during the trial.
Once the pleadings are closed the Court will set the case for directions. Directions are given with a view to securing the just expectations and economical disposal of actions. They are one of the means by which the Court exercise some measure of control over the preparations made by the Parties for trial.
During the stage of directions the Court can order discovery of documents and inspection, delivery of further and better particulars, security for costs, consolidation etc, provided that a relevant application is filed by a litigant.
In clear cases (for example where there is clearly no defence or valid claim, or cases which are capable of being decided in points of law without reference to factual disputes) it is possible to obtain a decision more quickly and cost-effectively by way of summary judgment or striking out.
- 7. Case management
Can the parties control the procedure and the timetable?
Despite the fact that the onus is essentially upon the litigants to move the case, the Courts tend to actively case manage litigation by laying down timescales to progress the case to trial.
There are time limits prescribed in the Civil Procedure Rules for the exchange of pleadings. A party that fails to deliver his pleading within the time specified under the rules (or as agreed between the Parties) may take an application for a judgment from the other side. Generally the Party in default will be allowed at least one opportunity to remedy the situation by lodging the outstanding pleading.
After the closing of the Pleading it is up to the Parties to progress the case for hearing but the Court usually tend to adopt a proactive case management role.
- 8. Evidence
What is the extent of pre-trial exchange of evidence? Is there a duty to preserve documents and other evidence pending trial? How is evidence presented at trial?
Litigation in Cyprus could be described as “litigation by ambush”. There is no requirement for exchange of witness statements. A party can become aware of the precise evidence supporting the other Party’s case only when oral evidence is produced by the witnesses of the opponent.
Evidence is adduced by examination in chief, followed by cross-examination and then re-examination.
Disclosure of documents will usually be ordered at the first directions hearing, following closure of pleadings. The parties are obliged to list and verified by affidavit and make available for inspection all non-privilege documents in their possession custody or control, which are relevant to the dispute. The issue of relevance is determine by reference to the pleadings.
Any fact which requires proof by the evidence of witnesses is to be proved by the examination of the witnesses orally in open Court.
- 9. Interim remedies
What interim remedies are available?
An application for interlocutory relief is generally made by summons, and all parties are afforded an opportunity to make submissions. However, in particularly urgent circumstances, an application for interlocutory relief may be made ex parte, ie, without notice to the person against whom relief is sought (eg, Mareva injunctions, Chambra injunctions, Norwich Pharmacal Orders, Anton Piller orders etc.).
The application for interlocutory relief should be filed after the writ is issued and supported by an affidavit or affidavits establishing that:
· The applicant has a prima facie case;
· There is a possibility that a judgment will be issued in favour of the applicant on the merits;
· If the order is not made, there is a great risk that any judgment issued in favour of the applicant will not be satisfied; and
· On the balance of convenience, the court should issue the requested order in favour of the applicant.
Two preliminary issues should be noted as regards applications for interlocutory relief. Injunctive relief will generally be granted only on the condition that the applicant lodges a counter-security to indemnify the respondent against all losses sustained due to the injunction in case the court finds that the injunction issued was unreasonable or was issued mala fides.
In ex parte applications, the applicant must disclose to the court all material facts including those which are adverse to the applicant’s case. Failure to comply with the aforesaid duty will result in the automatic discharge of the injunction.
A right to obtain an interlocutory injunction is not a cause of action. It cannot stand on its own. It is dependent on there being a pre-existing cause of action against the respondent arising out of an invasion, actual or threatened, by him of a legal or equitable right of the applicant, for the enforcement of which the respondent is amenable to the jurisdiction of the court. The right to obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of action.
Most injunction cases are determined on the balance of convenience or the risk of doing an injustice to one side or the other. The extent to which the disadvantages to each party would be incapable of being compensated in damages is always a significant factor in assessing where the balance of convenience lies.
An apparently unreasonable delay may be excused if sufficiently explained by the applicant. Cypriot courts do not have jurisdiction to issue injunctions having extraterritorial effect. The court will not, and ought not to, make an order which it cannot enforce.
- 10. Remedies
What substantive remedies are available?
Cyprus Courts have jurisdiction to award a wide range of remedies as same are available in all common-law jurisdictions. Usual remedies awarded by the Courts are damages, declarations mandatory or prohibitory injunctions, specific performance, orders for sale etc.
Interest may be payable on monetary judgements.
- 11. Enforcement
What means of enforcement are available?
A litigant who obtains a judgment does not thereby automatically obtain the remedy sought in the proceedings. The courts have powers to enforce compliance by parties who fail to obey judgments and orders made against them. Domestic judgments can be enforced by:
· Writ of movables;
· Garnishee proceedings;
· Registration of a charging order over the immovable property of the judgment debtor or over his chattels (e.g., shares);
· Writ of delivery of the goods ordered to be delivered to the judgment creditor;
· Writ of possession of the land ordered to be delivered to the judgment creditor;
· Committal for breach of an order or undertaking;
· Writ of sequestration; and
· Bankruptcy proceedings against the judgment debtor.
- 12. Inter partes costs
Does the court have power to order costs?
The costs of litigation may be recoverable from the other party. The normal rule is that a successful litigant is awarded an order for costs to be paid by an unsuccessful litigant. This rule may not be applied in part or in whole, if the conduct of the successful litigant is regarded by the court as deserving of the censure of disentitlement to costs. A successful party in a complex commercial case can expect to recover only 50 to 70 per cent of its actual legal costs in connection with the action.
The court will direct the costs to be assessed by the Registrar of the Court. Court fees comprise part of the disbursements which are included in legal costs.
A Claimant or a Defendant in a counterclaim may be required to provide security for the Opponents’ Costs. The most common grounds for obtaining an order for security for costs are:
- The Claimant or Counterclaimant is ordinarily resident out of the jurisdiction and does not have any immovable property within the jurisdiction of Cyprus Courts or
- The Claimant or Counterclaimant is a limited liability company which appears to be insolvent.
- 13. Fee arrangements
Are “no win no fee” agreements or other types of contingency fee arrangements available to parties?
Contingency fees are prohibited in Cyprus. For contentious matters, a lawyer may make a written agreement with his client fixing the amount and mode of payment for the whole or any part of his costs and disbursements. Where there is such an agreement, the costs are not subject to taxation.
Where fees for contentious matters are not fixed by agreement, they are controlled by the Rules of Court. If a client is dissatisfied with the bill rendered by his lawyer, he must apply to the Registrar of the Court for taxation of the bill.
In exercising his discretion in taxing a bill, the Registrar is required to take into account all relevant circumstances, and in particular:
· The complexity of the matter and the difficulty or novelty of the questions involved;
· The skill, specialised knowledge, and responsibility required and the time and labour consumed by the lawyer;
· The number and importance of the documents prepared or perused;
· The urgency and importance of the matter to the client; and
· The amount or value of money or property involved.
Most lawyers have, at any point in time, a particular charging rate which is uniformly applied to all clients. That rate will be higher for an able and experienced lawyer than for a lawyer who has recently commenced practice. The rates charged by each individual lawyer are a matter for that lawyer and for negotiation with the client. The Cyprus Bar Council Rules provide for a minimum charging rate for extrajudicial work.
The professional bodies governing the affairs of lawyers, in particular the Bar Association and disciplinary bodies which operate in the area, keep a watchful eye on the fees charged by lawyers and, in the event of a complaint about overcharging, will investigate the matter. In appropriate cases, this can lead to a direction that fees and costs be repaid and to other disciplinary action.
- 14. Appeal
On what grounds and in what circumstances can the parties appeal? Is there a right of further appeal?
Strict time limits exist for the lodging of an appeal. A notice of appeal against a judgment on the merits must be filed within 42 days from the date of the judgment.
An appeal against an interlocutory judgment or decision must be filed within 14 days from the date of the judgment or decision.
A party can appeal:
· Against findings of fact if there is insufficient evidence to support the finding or if the decision is clearly wrong; and
· Against decisions of law.
Appeals to the Supreme Court in its Appellate Jurisdiction generally lie as of right.
There is no right of appeal against interlocutory decisions which do not influence and/or affect in any way the rights of the litigants. For example there is no right of appeal against decisions dismissing applications for amendments of pleadings, for discovery, for particulars, for striking out, for security for costs, for setting aside or staying of proceedings for lack of jurisdiction or forum non conveniens or to be referred to arbitration.
An appeal does not operate as an automatic stay of execution but the Court may grant such a stay subject to certain conditions and provided the requested stay is justified.
- 15. Foreign judgments
What procedures exist for recognition and enforcement of foreign judgments?
There is no unified system in Cyprus for the enforcement of foreign judgments. A judgment of a court of a foreign country has no direct operation in Cyprus, but it may be enforceable by action or counterclaim at Common Law or under statute, or it may be recognised as a defence to an action or as conclusive of an issue in an action.
A foreign judgment may be enforceable under statute by the process of registration provided that the Republic of Cyprus has reciprocal agreements with the Country whose courts issued the relevant judgment. On the other hand, a judgment creditor seeking to enforce a foreign judgment in Cyprus at Common Law cannot do so by direct execution of judgment; he must bring an action on the foreign judgment.
An application for registration of a foreign judgment may be made if:
· The judgment is final and conclusive between the parties;
· There is a sum of money payable under it which is not for tax or a similar charge or in respect of a fine or penalty;
· The application is made within six years of the judgment being given or an appeal adjudged;
· The judgment is unsatisfied, at least in part;
· The judgment is capable of execution in the original foreign court;
· The foreign judgment was issued by a foreign Court which is considered by Cyprus law to have had competent jurisdiction;
· The foreign judgment was not procured by fraud;
· The foreign judgment was not rendered contrary to natural justice and
· The foreign judgment does not violate the Cyprus public policy.
Pursuant to the provisions of the EU Regulation 44/2001, judgments issued by Courts of members States of EU (except Denmark), may be registered, recognised and enforced in Cyprus by a simple procedure. Cyprus has also bilateral arrangements for the recognition, registration and enforcement of foreign judgments with Russian Federation, Ukraine, Serbia, Montenegro, Syria and China.
The procedure of recognition, registration and enforcement of foreign judgments is regulated by Law 121 (1)/2000.
- 16. Foreign proceedings
Are there any procedures for obtaining oral or documentary evidence for use in civil proceedings in other jurisdictions?
There is no jurisdiction to force non-resident parties or witnesses to give evidence before Cypriot courts. However, Cyprus has entered into various bilateral agreements with a number of countries whereby a mechanism for obtaining evidence abroad exists.
A letter of request is addressed to the competent authority requesting that a commission for the taking of evidence abroad be issued.
- 17. UNCITRAL Model Law
Is the arbitration law based on the UNCITRAL Model Law?
As far as concerned international arbitrations as defined in the Model Law the Cyprus Arbitration Law is based on the UNCITRAL Model Law. All other arbitrations are considered as domestic arbitrations and are regulated by the domestic Arbitration Law CAP. 4.
- 18. Arbitration agreements
What are the formal requirements for an enforceable arbitration agreement?
Domestic Arbitration Law CAP. 4 defines arbitration agreement as meaning a written agreement to refer present or future disputes to arbitration, whether or not an arbitrator is named therein or not.
In International Arbitration, Article 7 of the UNCITRAL Model Law applies.
- 19. Choice of arbitrator
If the arbitration agreement and any relevant rules are silent, how many arbitrators will be appointed and how will they be appointed? Are there restrictions on the right to challenge the appointment of an arbitrator?
In the absence of any agreement of the parties, a sole arbitrator is appointed by the appointing authority – (provided such authority is expressly designated in the arbitration agreement) – or by the competent District Court.
The vast majority of cases are conducted by sole arbitrators. Challenging the arbitrator under the domestic Arbitration Law can be done at any stage of the arbitral proceedings if the competent District Court is satisfied that the arbitrator has misconducted himself.
Under the International Arbitration Law, the challenge of arbitrator is regulated by Article 12 of the UNCITRAL Model Law.
- 20. Procedure
Does the domestic law contain substantive requirements for the procedure to be followed?
The domestic Arbitration Law does not set out any substantive procedural requirement. In contrast, in International Arbitration Law the procedural requirements of the UNCITRAL Model Law must be followed.
- 21. Court intervention
On what grounds can the court intervene during an arbitration?
Under the domestic Arbitration Law, the Court can intervene upon the application of any party to the arbitration to decide issues referred to it as “case stated”, to remove arbitrators for misconduct, to order security for costs, to grant interim relief, to set aside or rectify an award, to enforce an award etc.
Under the International Arbitration Law the Court may only intervene in any matter expressly stated in the UNCITRAL Model Law.
- 22. Interim relief
Do arbitrators have powers to grant interim or conservatory relief?
Under domestic Arbitration Law the Arbitrators do not have power to issue interim relief. Such power is vested expressly to the Courts. Under the International Arbitration Law, Article 17 of the UNCITRAL Model Law applies.
- 23. Award
When and in what form must the award be delivered?
Under the domestic Arbitration Law the arbitrator is obliged to render its award with reasonable dispatch otherwise he will be liable to be removed for misconduct upon the application of one or both of the parties. There is no provision regulating the form or content of the award.
Under the International Arbitration Law, Article 31 of the UNCITRAL Model Law applies.
- 24. Appeal
On what grounds can an award be appealed to the court?
Under the domestic Arbitration Law a party can attack an award on many headings such as “case stated”, misconduct of the arbitrator, and other grounds similar to those provided for, under the English Arbitration Act 1950.
Recourse against an international award is limited to the very narrow grounds available under the UNCITRAL Model Law.
- 25. Enforcement
What procedures exist for enforcement of foreign and domestic awards?
As a contracting party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of the United Nations of 1958 (“the New York Convention”), Cyprus is bound to enforce awards made in foreign states which are contracting Parties to that Convention.
The procedure of registration, recognition and enforcement of foreign arbitral award, is regulated by Law 121(1)/2000.
The enforcement of a foreign arbitral award can be effected by the filing of an application by summons by the judgment creditor supported by an affidavit requesting the recognition and enforcement of the award.
The affidavit shall attach the documents stated in Article IV of the New York Convention accompanied by the translations of same in Greek language which must be certified by an official or sworn translator or by a diplomatic or consular agent.
The domestic arbitral awards are enforceable in the same manner as a court judgment though the leave of the Court must be obtained first.
The judgment creditor shall file an application by summons supported by an affidavit exhibiting a true copy of the award, as well as, a true copy of the arbitral agreement.
Under the International Arbitration Law, Chapter VII of the UNCITRAL Model Law applies.
- 26. Costs
Can a successful party recover its costs?
Yes. Provided that the Parties have not agreed otherwise, the arbitrator may order in the award, that all or part of the legal costs reasonably incurred by one party shall be paid by the other party. The arbitrator has the power to tax these costs and he shall do so, if requested by the Parties.
ALTERNATIVE DISPUTE RESOLUTION
- 27. Obligatory ADR
Is there a requirement for the parties to litigation or arbitration to consider alternative dispute resolution before or during proceedings?
Not at present. However, before the Court sets the case for hearing, usually invites the parties to mediate.
- 28. Specific features
Are there any specific features of the dispute resolution system not addressed in any of the previous questions?
There is a unified legal profession in Cyprus. The decisions of superior Courts are binding on lower Courts.
Cyprus Courts are becoming favourable to arbitration.
For further information on this topic please contact Mr. Soteris Pittas at SOTERIS PITTAS & CO LLC, by telephone (+357 25 028460) or by fax (+357 25 028461) or by e-mail (email@example.com).
The statements contained in this publication are not legal opinions and readers should not act on the basis of such statements without first consulting a lawyer.