An injunction is an order of the court that requires a party either to do a specified act (mandatory injunction) or to refrain from doing a specified act (prohibitory injunction - for example, not to trespass on identified land). Technological advances combined with the effects of globalisation allow for rapid transactions and thus create the need for more effective remedies and solutions which can be requested and delivered with haste. The Cypriot Courts recognising this need, especially in cases with an international character, have adapted accordingly and have granted to parties various types of injunctions depending on the circumstances of each case.
Injunctions can also be classified depending on whether it is sought as an interim or permanent relief. Permanent is any order which is issued after the final determination of the rights of the parties. The purpose is to finally and permanently prevent the violation of the rights of the successful party. Arguably however, the more important types of orders are the orders sought as an interim relief, since in many cases the successful granting of an interim relief can lead to the successful determination of a case.
The Test:
The precedent set in the case of Odysseos v. Pieris Estates Ltd and Another (1982) 1 CLR 557 states that Section 32 of the Courts of Justice Law (14/60) confers power on the Court to grant an injunction "in all cases in which it appears to the Court just or convenient so to do". However, the justice and convenience of the case is not the sole consideration to which the Court should pay heed in the case of an interlocutory injunction, and no such injunction should be granted, unless the following conditions are 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."
"A serious question to be tried at the hearing"in the context of Section 32 does not require anything beyond the disclosure of an arguable case on the strength of the pleadings. The standard required for the Claimant to overcome the evidential hurdle is not very high; Claimant is only required to establish "a probability" of success. The concept of "a probability" imports something more than a mere possibility but something much less than the "balance of probabilities", the standard required for proof of a civil action. "A probability", being a visible chance of success.
An interim injunction may be applied and issued in two ways:
(a) By a without notice (ex parte) application of one of the parties; and
(b) By application with notice served on the party against whom the order is sought (by summons) .
Interim injunctions are usually obtained after a by summons application to the Court. But where due to the “urgency” of the issue at hand or due to other “special circumstances”, e.g. irreparable damage, then a party may apply to the court without notice to the other party.
Ex-parte injunctions are of course harder to obtain and courts require that an applicant comply with the duty of “full and frank disclosure” of all relevant facts, i.e. both facts in favour and against the applicant. Failure to do so might lead the Court to quash the injunction at a later stage.
The General Principles that a Court shall take into consideration:
1. The Applicant’s behaviour pursuant to the maxim of equity “he who comes to equity must come with clean hands”;
2. Whether there has been “full and frank disclosure” on behalf of the applicant;
3. Whether the order is sought in abuse of the court proceedings or pursuant to improper motives;
4. The effects of the order on the respondent or other third parties;
5. Whether there is another remedy more equitable or satisfactory than the order;
6. Whether the issuance of the order is futile or ineffective;
7. Whether the matter in dispute or the rights in violation are of minor importance;
8. Whether there has been unreasonable delay in pursuing a remedy (laches) or acquiescence on behalf of the Applicant;
9. Whether the issuance would be inequitable;
10. Whether the Court would be able to observe the conformity with the order.
Note however that for each type of injunction there are specific requirements to be satisfied in addition to the aforementioned general requirements. The above only outline the general principles that a Court shall have in mind before issuing an injunction.
Some of the most common and important types of injunctions are:
1. Freezing injunctions “ Mareva” Injunctions.
2. World wide “Mareva” injunctions.
3. Search orders “Anton Piller” orders.
4. “Norwich Pharmacal” order requiring third parties mixed up in wrongdoing to provide information or documents.
5. “Chabra orders” – against co-defendants believed to be in possession or control of assets beneficially owned by the principal defendant.
6. Anti-suit injunctions to prevent court or arbitration proceedings.
7. Orders in aid of foreign arbitration or court proceedings.
8. Quia timet injunctions granted where no wrong has yet been committed, although it is threatened.
For more details or advice regarding injunctions or court orders contact Phoebus, Christos Clerides & Associates LLC at info@clerideslegal.com or Con.clerides@clerideslegal.com
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