CYPRUS: SERVICE OF JUDICIAL AND EXTRAJUDICIAL DOCUMENTS IN CIVIL AND COMMERICIAL MATTERS AS PER REGULATION (EC) No 1393/2007
The cooperation between the judicial authorities of the Member States of the European Union is a cornerstone for a European area of freedom, security and justice and is particularly necessary to ensure effective service of judicial and extrajudicial documents between Member States in civil or commercial matters as per the European Regulation 1393/2007. The service of judicial and extrajudicial document is part of every court case. Therefore, fast and secure delivery of documents is vital for the proper administration of justice and protection of rights of the parties in litigation proceedings.
The Regulation provides for methods of sending documents abroad either directly to the recipient or to the relevant authorities of the receiving State establishing a main mode of transmission including the intervention of three agencies: the transmitting agency, the receiving agency and the central body. However there are also alternatives offered including transmission by consular or diplomatic channels; service by diplomatic or consular channels; service by postal channel; and direct service between competent authorities. A crucial issue, however, is that the Regulation does not define the concept of judicial or extrajudicial documents; therefore this is exclusively within the jurisdiction of domestic law for the determination of each Member State.
The above matter has come before the Supreme Court in Cyprus, in the case of CONSORTIA EUROPE LTD AND FREGATA HOLDINGS LTD (No.387/2011), in which the Judge Mr. Nathanail made an interpretation of the Regulation and its impact on Order 6 Rule 6. Permission was given in this case to the plaintiffs to serve both the writ and the application for an injunction outside jurisdiction to the defendant company in the United Kingdom as per the provisions of the Regulation. However the appellant-defendant company appealed against such a decision on the main basis that notice of the writ was not served as provided in Order 6 Rule 6 in cases of service out of the jurisdiction. The First Instance court dismissed the application holding that the regulation regulates the direct service of documents abroad and underlined that notice of writ under Order 6 Rule 6 no longer applies having in consideration the fact that it was established in previous times and that it should be considered as repealed by the Regulation which has increased force over such matters. This has also been reaffirmed in a recent judgment on Civil Appeal 113/2012 V.K.C. QUALITY INVESTMENTS LTD v. SHAMUSSI-DEEN ALABI, SHITTA BEY where the Supreme Court of Cyprus reaffirmed that EU Regulation 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters is prevalent over domestic Civil Procedure Rules.
However the Supreme Court in this case carefully examined this issue and came to the conclusion that the decision of the First Instance Court repealing Order 6 Rule 6 due to the existence of the Regulation removes the defence provided in the Civil Procedure Rules given to the recipient for the service of documents, who is obliged to appear in the territory of the Republic, to defend himself. Nowhere in the Regulation is there a requirement for service of the writ instead of a notice of the writ, and therefore the Court of First Instance decision that the Regulation has implicitly repealed Order 6 Rule 6, is not true. It was also stated that as regards to the infringement of Order 48 Rule 13, which requires the service to be issued along with the order issued after an ex parte application, with the ex parte application itself, along with the accompanying affidavit, the only thing left to be stressed is the fact that the wording makes it clear and compelling, and there can be no deviation from this. Therefore, the appeal succeeded and the first instance judgment was set aside.
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