Lectures

CIVIL PROCEDURE - Lecture 7

By: CHRISTOS CLERIDES Nov. 25, 2009

This is a huge subject. We can only summarize the salient features of the law to be found mainly in the Civil Procedure Law and in the Civil Procedures Rules. Both were taken from English Law and Practice applicable in the 1950s. The Civil Procedure Rules follow the English White Book of 1954 with minor amendments. The Constitution gives the Supreme Court, Article 163 exclusive jurisdiction to “legislate” in matters of Civil Procedure Rules , so does Section 69 of Law 14/60 and Section 102 (2) of CAP 6.

A. CIVIL PROCEDURE LAW CAP 6

The Law was enacted during the colonial days. It provides for powers of the Courts in Civil Actions and for the Execution of Judgments. We have seen in previous lectures the powers of the Court under the Courts of Justice Law 14/60 Part IV. Law 14/60 supplements CAP 6  and further provides for the important  matter of execution of judgments. We have also considered in our previous lectures, Sections 4 , 5 and 9 of Cap 6 which provide for interlocutory or interim orders for the preservation of property the subject matter of the action and for interim orders restraining dealings with land in pending actions to ensure satisfaction of possible judgments.

The Civil Procedure Law , CAP 6 , empowers a Court to do the following also :

POWERS OF THE COURT :

1. To allow service of a writ of summons outside the Republic where the cause of action for breach of contract arose in Cyprus or relates to property subject to Cyprus Law or the cause of action arose in Cyprus and it is more convenient that the matter be tried in Cyprus (See Section 3), of CAP 6.

2. May order the taking of evidence on oath before any person in or outside Cyprus or request a Foreign Court to take such evidence (Section 8).

EXECUTION OF JUDGMENTS

As far as Execution of judgments is concerned the matter is dealt with in Sections 10-102.

In Section 14 of the Law , the modes of execution are stipulated to be :

(a) Writ of movables

(b) Memo on or sale of immovable property

(c) Sequestration of immovable property

(d) Attachment of property

(e) Examination of judgment debtor and order to pay by installments

In addition special provision is made for the rights of guarantors.

(a) Writ of movables

This is an order of the Court allowing the Court Bailiffs to take possession of movables and sell them by private auction.

Certain  movables are exempt, see Section 16 , such as necessary clothes, beds, cooking utensils , TV, refrigerator , washing machine for clothes, cooker, radio or any equipment used by the children for their education, tools of trade not exceeding £3.000, pair of cattle , horse, mule , ass or agricultural tractors or farm tools not exceeding a value of £3.000 and accessories as well as food for the animals sufficient to feed them for 3 months. Also provisions for three months and seed grains sufficient for sowing in respect of 1 year.

The writ is executed after sunrise and before sunset. Sale is by auction after a minimum of three days, see Sections 17-20. Third parties may intervene if they have a claim over the ownership.

Writs Against Immovable Property. Sale Of Land When Judgment Charged Under Part VI.

Once a year has elapsed from the time when the judgment has been made a charge on the land by registration it may be sold in execution without an order of a Judge.  On notice to the judgment debtor the judgment creditor may apply to the DLO for the sale of the property. This covers basically properties covered by memos examined above and it does away with the need to obtain an order of a Court. 

(b) Execution Against Immovables and Making a Judgment a charge on Land/Registration in Debtors Name with a view to execution and Sequestration of land.

If there is no movable property to be attached and sold by Public Auction the judgment Creditor may proceed against immovable property of the judgment debtor registered in his name , Sections 22,23 and 24 and for the procedure in general , see Sections 25-52 . If the Land is not registered in the debtors name, he may apply to the DLO for the registration of the property (Sections 63-71) . A procedure is laid down in Sections 64-68 .If the DLO refuses to do so the matter maybe referred to the Court which may order the registration (Section 69). The writ of sale of immovable property is effected by Public Auction. The possibility of the Court fixing a reserve price, for bidding, for intervention of third parties and for land subject to mortgage is provided for in the Law. The latter may be sold if the judgment Creditor pays off the mortgage debt in which case it is added to the judgment debt. A writ of sale of immovable property orders the sale of the land .

 Finally under Sections 53-62 a judgment Creditor may register the judgment on immovable property of the judgment Debtor as a security. This is done by filing a MEMO on the registration which is valid for 6 years and maybe renewed for two year periods if an application for renewal is filed one month prior to the expiration of the MEMO. The property so charged ,if sold its proceeds  will be used for payment of all prior memos. The Court may order the sale of property so charged.

Finally where a writ of sale of immovable property has been issued the  Court may order the sequestration of the property for a period not exceeds 3 years and stay execution by way of sale to give the right to be judgment creditor to use the property and therefore its income for payment of the judgment debt.

(c) Execution By Attachment Of Property

Often the judgment debtor has no movable or immovable property.

Nevertheless he may be beneficially interested in any money in the hands of other persons, not parties necessarily to the proceedings. For example the judgment debtor may have a credit balance with a bank or he may be entitled under a judgment in his favor to the payment of a sum of money.  In such cases the judgment creditor may apply to the Court for the issue of a writ of attachment of this property in the hands of the third person. 

When the writ is issued it is served on that person who is directed to appear before the Court and from the time of the service all such property becomes a security which he holds for the satisfaction of the claim of the judgment creditor. A special procedure is laid down in Sections 73 -81 that has to be followed is such matters and for the right of opposition to such a writ. 


(d) Examination Of Judgment Debtor

In the past under Part VIII of the Law the Court had jurisdiction to commit a judgment debtor in prison for a term not exceeding 12 months on account of his failure to satisfy the judgment in case of refusal or neglect to do so.

The new Part VIII of the Law is intended to take care of the abolition of imprisonment of a civil debtor as a result of Protocol 4 Of the European Convention for the Protection of Human Rights which Cyprus has ratified and enacted into law.

Under the new Part VIII the judgment creditor may apply to the Court for an examination upon oath of a judgment debtor as to his ability to pay the judgment debt by installments having regard to his financial situation. 

The judgment debtor served with such an application is bound to appear before the Court and be examined upon oath as to his means. The Court may order the payment of the judgment debt by monthly installments. 

Under the New Part IX introduced in 1999 Sections 90-91 (A) – (I)  the Court may order that the judgment debt be paid by installments on dates and sums specified and subject to review.  

It is no longer possible as of 15.6.2005 to consider the payment installments as recoverable the same way that fines are recovered in criminal cases, leading to imprisonment of a judgment debtor if not paid.
 
Where there is a default to pay an installment under the order of the Court the judgment debtor in default may be held in contempt of Court and be treated as such.

Under the Section 91 (A - I) provision is made against fraudulent transfers and dealings. 

Any gifts or transfers or concealing or alienation of property done with the purpose of preventing or delaying satisfaction of the judgment debt are deemed to be fraudulent and constitute a criminal offense punishable with 12 months imprisonment or a fine up to a CyP1.000.

Accomplices are punished up to six months imprisonment and up to CyP500 fine.

In addition the Court has power to declare any such transfers or transactions void. 

Further the Court may order a salary cut for purposes of payment of the judgment debt by installments with which both the employee and the employer have to comply.  This provision is also applicable to civil servant’s salary.


Guarantors

In Section 102 of the Law Cap 6, it is provided that when a guarantor pays under a guarantee he is entitled to assignment of any judgment and is entitled to step into the shoes of the judgment creditor and utilize all methods of execution allowed to the judgment creditor.


B. CIVIL PROCEDURE RULES

As above stated in Cyprus we follow the “White Book” of 1954 and English practice . Specialized Courts such as the Labour Disputes Court, the Rent Control Court, the Family Courts, have their own rules that adopt to the Civil Procedure Rules to fill in gaps. In addition special rules of procedure are applicable in specific jurisdictions such as Compulsory Acquisitions or Appeals from decisions of the DLO in cases of Boundary Disputes etc.

Nevertheless the District Courts apply the Cyprus Civil Procedures Rule divided in Orders and Rules following  the English precedent of 1954.


Procedure is best understood if we divide the process of a Court Action into six stages

1. Commencement and Service of the proceedings
2. Pleadings
3. Interlocutory Matters such as third party proceedings, discovery , particulars, etc.
4. The Trial
5. The Appeal
6. Execution of Judgments


1. Commencement and Service of the proceedings

There are two ways of commencing proceedings of a civil nature in the District Court . The one is by a Writ and the other by Originating Summons. In cases where the dispute is not simply the interpretation of a document or a point of law proceedings are commenced by a Writ of Summons which can be generally or specially indorsed. Where the dispute relates simply to the construction of a document or a declaration of rights, i.e. legal issues,  the procedure specified in Order 55 Rules 1 -4 is followed . In practice most of the actions are commenced by Writ of Summons under Order 2 Rules 1 – 15 .

A general indorsement is preferred in cases where it is appropriate to prepare and file later a more detailed Statement of Claim and it is usually preferred when the plaintiff does not have all the necessary yet evidence in hand. In matters specified in Order 2 Rule 6 i.e where the claim is for a debt or liquidated demand , guarantee, bond , cheque, promissory note , or where the action is for recovery of possession of immovable property or movables and generally in all actions except for defamation malicious prosecution false imprisonment , seduction and fraud the writ maybe specially endorsed with the Statement Claim.

This means that the Statement of Claim is included in the writ itself and is not of a general nature that will be drafted later by a detailed Statement of Claim . The writ must be signed by the advocate appearing for the Plaintiff and is filed together with the retainer signed by the Plaintiff See Order 2 rule 14 . In cases where the Plaintiff is abroad there is no need to accompany the writ with the retainer to be filed in Court. The writ is normally valid subject to renewal for a period of 12 months under Order 4 within which period it must be served, personally on the defendant under Order 5 or if he cannot be found it may be left under Order 5 rule 2 , with any member of his family or any person in charge at the place of his employment . Special provisions is made for service on companies and it is provided in Order 5 rule 7 that it may be served on the president or head officer , treasurer or secretary . In fact under the Companies Laws Cap 113 , service on a company may be effected by living it at the registered office of the company. Under Order 5 rule 9 as well Order 5 A the Court may allow by order substituted  service by letter by, public advertisement or otherwise in cases where the defendant avoids service or cannot be found.

Service nowadays under the new Order 5 B is effected by private bailiffs approved by the Supreme Court of Cyprus for carrying out this type of service upon payment of a fee .

Under Order 6 in certain specified cases service of the writ of summons may be allowed outside jurisdiction ,in cases mainly where the subject matter concerned is immovable property in Cyprus or obligations affecting immovable property in Cyprus or the action concerns a contract or recovery of damages in respect to a contract which is made in Cyprus directly or through an agent. Also in cases where the breach is committed in Cyprus irrespective where the contract was made. In addition service out of the jurisdiction is allowed for all civil wrongs committed in Cyprus or an injunction is sought for anything to be done in Cyprus or for purposes of removing a nuisance in Cyprus and finally in cases where a person out of Cyprus is a necessary and proper party to the action.

A special procedure has to be followed to convince the Court that the case is a proper one for service of the writ of summons out of Cyprus . In addition  no writ of summons will be sealed by the registrar notice of which is to be given outside Cyprus unless the Court gives leave to seal under Order 2 Rule 2.


In  a Writ of Summons the Plaintiff may join any parties as Defendants and many Plaintiffs may also sue in the same writ under Order 9. The  Defendant under Order 10 may with the leave of the Court issue and serve a third party notice on  anybody from whom the Defendant claims a contribution or indemnity with respect to the matters raised by the Plaintiff in his action. Under Order 13 the Plaintiff may join different causes of actions and under order 14 the Court at any stage may order two similar actions to be consolidated.

Once served the Defendant subject to any contrary directions of the court in cases of substituted a service has to enter an appearance in a specified form. If not a default judgment may be entered by default of appearance i.e the Plaintiff proves his case before the judge in the absence of the Defendant on an ex parte basis . The procedure is set down in Order 17 rules 1 -14 . Where the Writ of Summons is specially indorsed the Plaintiff may apply for summary judgment . This means that upon appearance of the Defendants the Plaintiff may apply to the Court for judgment as per the amount claimed in the Writ of Summons unless the Defendant satisfies the Court that he has a good defence to the action. This procedure for summary judgment is normally used where it is obvious on the facts of the case and the evidence that the Defendant has no real defence and has entered an appearance merely for purposes of delaying the matter. In practice if the Defendant shows that he has some reasonable defence summary judgment will not be entered and he will be allowed to file his defence.

2. Pleadings

Pleadings have been described as the rails on which the trial moves. They consist of the Statement of Claim ,whether it be on special writ of summons or filed subsequently , the Defence and Counterclaim if any and the Reply and Defence to the Counterclaim . No subsequent pleadings are allowed unless ordered by the Court. In the Statement of Claim the Plaintiff sets out in a summary form the facts of the case on which he intends  to rely upon in order to prove his cause of action. Evidence is never pleaded. To give an illustration in a road traffic accident case the Plaintiff will set out a description of the parties, whether he was a pedestrian or a driver when the accident occurred and the location of accident and will describe in summary form how the accident occurred. He will then proceed to allege negligence and/or breach of statutory duty and give in a separate paragraph particulars of negligence  and breach of statutory duty. He will then allege that as a  result the Plaintiff sustained personal loss and injuries and will give details of the personal injuries and details of the special damages incurred ,for example , medical expenses , clothing, nursing expenses etc, General damages for the injury itself need not be pleaded in a figure although facts which reflect on the quantum , that is the level of damages have to be pleaded. In the pleadings the plaintiff does not plead the law but may plead facts upon which a legal situation arises in order to warn the other side of the case he will have to meet later during trial.

In practice matters of law are often incorporated in pleadings and the Courts in Cyprus would not normally strike them out as they have power to strike out any frivolous or vexatious matter or matter that is considered scandalous.

Where a party wishes to raise Constitutional Law issues the Supreme Court has decided that these must be pleaded specifically so that the court and the other side  are at an early aware of the argument to be expounded upon  later. The Defence is also governed by similar rules and it is to be noted that the Defendant may raise a Counterclaim against the Plaintiff or it may also raise a claim in the form of a Counterclaim against non parties to the proceedings  in which case the pleadings are served on such parties in a special form and that party becomes a party to the proceedings. All Defendants by Counterclaim have to file their Defence. Order 19 lays down the general rules as to pleadings, Order 20 those relating to  Statement of Claim and Order 21 for Defence and Counterclaims.

Under Order 23 where any matter arises pending the action the Defendant may deliver a further Defence  and under Order 25 the court has power to give leave to amend any pleading. Normally the court allows amendments to the pleadings at any stage of the proceedings before the trial has commenced. After trial Courts scrutinize more carefully the reasons and the need for the amendment. Under Order 27 any party may raise a point of law which may be pre tried if it would dispose of the matter. Further and better particulars of any pleading maybe requested and if not given the Court will order that they should be delivered see Ordering.

3. Interlocutory matter

The defendant may make a payment into Court under Order 22, in satisfaction of one or more claims. The plaintiff may accept this or may turn it down at the risk of been penalized with the extra costs incurred. Discovery and inspection is a procedure more frequently used nowadays than in the past. Any party may after pleadings have closed apply for an order of the Court that the other party to the proceedings makes upon oath discovery i.e an Affidavit  disclosing  all the documents relevant to the case in his possession that will be used as evidence during trial. In addition the Court may order inspection of these documents and the supply of copies thereof. The penalty for refusing or neglecting to comply with an order of the Court to disclose all the relevant documents is that the guilty party will not be allowed normally to produce evidence of an undisclosed document unless the Court is satisfied that there is good reason for departing from this rule.
After the closure of the pleadings the plaintiff may apply for a date of trial to be fixed under Order 31 or if he fails to do that the defendant may  do so. In addition it must be pointed out that after closure of the pleadings a party may take out what is known as a Summons for Directions, that is the parties are summoned to appear before the Court to obtain its directions as to various matters such as discovery and inspection of document further and better particulars or any other directions relating to the procedure to be followed (O.30).

Order 48 is a very important procedural rule very commonly used in practice. It provides for the  form of applications by summons or ex parte for all interlocutory matters and also specifies in which cases an application has to be accompanied by an affidavit and in which cases it may be made under the rules on an ex parte basis. In most cases application is made by summons but in a limited number of cases specified in O. 48  r8 applications may be made ex parte e.g. for leave to serve outside jurisdiction. Also in most cases applications have to be accompanied by an affidavit. It is well to remember that ex parte applications may also be made where there are peculiar circumstances or where the matter is deemed urgent under the provisions of Section 9 of the Civil Procedure Law Cap 6. In fact almost in all cases where an application is made ex parte reliance is placed on this section. Applications by summons or ex parte rely  on affidavit evidence with the right to cross examine if allowed by the Court.

 Finally two further Orders are of great importance the one is Order  57 and the other Order 64. Order 57 provides for an extension of  Order of the times set down by rules and Order 64 gives the Court the right to remedy any defect in the proceedings by issuing a relevant and appropriate order.

4. The Trial

Order 33 provides for the procedure to be followed at trial. The procedure is simple in the sense that normally the plaintiff will open his case and adduce his evidence i.e call his witnesses. When he completes his case the defendant is called upon to call for any evidence that he may intend to produce i.e his own witnesses. The normal rule is that the party who has called the last witness will normally address the Court first and then the other party normally the plaintiff will reply. Once this procedure is completed the Court will deliver judgment either ex-tempore or it  can reserve it for a future date .Special provisions is made for cases where either one of the parties does  not appear on the date fixed for trial. Normally if it will be a plaintiff the claim will be dismissed  or adjourned,  subject to reinstatement on equitable grounds.

If it will be the defendant  the Plaintiff may proceed to prove his case subject to setting aside. If there is a counterclaim the court may decide to hear the counterclaim in the context of the plaintiffs and defendants case or may opt to hear first the plaintiff and the defendant and then hear the defendant on the counterclaim and the plaintiff on his defence to the Counterclaim. The way the evidence is given in court is by calling witnesses who take the oath . Then a witness is first examined by questions and answers by the lawyer of the party calling him . He is then subject to cross examination by the other party and finally  there  is  a right of re examination by the party calling the witness for matters that need clarification after  cross examination. In some cases a special procedure may be followed under which a witness is summoned not to give evidence on oath but merely without being sworn to produce documents in his possession , under a witness summons duces tecum.

5. Appeals

Order 35 governs questions of appeals . The procedure is also govered by the Appeals Procedure Rules of 1996.There is a right of appeal against a final judgment or an interlocutory Order . Apealls against final judgment is within 42 days and against an interlocutory order within 14 days. In the notice of appeal the appellant must file each ground of appeal separately and give separately there under the reasoning of each ground of appeal.

A respondent may cross appeal within 30 days of service of the notice of appeal. . The Appeal Court has power to hear a new evidence something which is rarely done or to decide the way it “feels” judicially of course  in order to administer justice. The Court of Appeal rarely interferes with the conclusions of the Trial Court on questions of credibility or the exercise of a discretion in one way or the other. It will not hesitate to interfere where there is a wrong application or interpretation for the law.

The Court of Appeal, nowadays the Supreme Court of Cyprus as we have seen, in exercising its  appellate jurisdiction has all the powers of the trial court. Including the power to stay execution of the judgment or proceeding there under pending the Apeal.

After an Appeal is filed the Appeal is set down for Directions which include the exchange of skeleton argument  between Appellant and the Respondent within a time frame of 45 days each. On the Hearing date each party has 30 minutes before the Appeal Court to further argue his client’s case

6. Execution

Order 40 provides for execution in general . We have seen above the methods of execution of  judgments under the Civil Procedure Laws Cap 6 .The civil procedure rules Order 40-Order 47 provide for the details of the procedure and the way of effecting execution under a writ of movables or writ for the seizure and sale  of movable property  or for the issue of a writ of sale of immovable property . Provision is also made under Order 42 as we have seen  for attachment and sequestration i.e contempt proceedings In addition special provision is made for a writ of possession of immovable property and for a writ of delivery of movable property and in order 44 the power and duties of the Bailiffs  entrusted with execution are specified in detail.

Conclusion

Civil procedure is a subject that is best learned through practice. Each Court, each judge has his own approach. A good grasp of the theoretical background of the law and the rules is nevertheless essential. Properly used procedure is a useful tool that may determine the fate of a claim. A bad pleading for example may have tragic results for a party. Failure to comply for discovery or inspection may lead to trial surprises. Bad service of proceedings may lead to their striking out and inability to commence fresh proceedings where the matter is time barred. A large portion of the case law of the Supreme Court of Cyprus deals with Civil Procedure matters. It maybe unfortunate that justice is administered very frequently not on the merits of the case but on procedural issues. At times excessive formalism has led to injustice . In addition lack of substantial reform to the basic rules of Civil Procedure has contributed to delays in the administration of Justice. The Supreme Court of Cyprus has been working for years to update the Civil Procedure rules to ensure simplicity, effectiveness, fairness and speedy trials. So far unfortunately no substantial amendments to the 1950s practice has been achieved half a century thereafter !

Dr. Christos Clerides
25/11/2009