The civil legal system in Cyprus: The amendment of Order 30 of the Civil Procedure Rules and its implications in current legal practice

Posted on 30 Oct 2014, by Constantina Zantira

Although not verbatim embodied in the Civil Procedure Rules of Cyprus, the overriding objective of enabling the court to deal with cases justly and at proportionate cost (Civil Procedure Rules of England and Wales, Part 1.1, implementing the Jackson Reforms on 1/4/2013) is a founding doctrine of the civil legal system. The parties in a litigation dispute are required to help the court to further this principle under the guidance of the Civil Procedure Rules, a procedural code towards its advancement.

The legal system in Cyprus has been the subject of criticism within domestic cycles due to the procedural defaults of the day-to-day practice and its failure to do justice promptly and efficiently. In an endeavour to remedy and modernize the existing practices, which are followed in Courts, the Supreme Court, by exercising the powers conferred to it by Article 163 of the Constitution of the Republic of Cyprus and by Section 17 of The Administration of Justice (Miscellaneous Provisions) Law of 1964 until 1991 (Law 33/1964) has issued the Civil Procedure (Amendment) Procedural Regulation 2014, which was published in the Government Gazette on 26th September 2014.

The new regulation amends Order 30 of the Civil Procedure Rules relating to the preparatory stage preceding the commencement of court hearings. Order 30 regulates the taking out of a summons for directions and the powers of the Court in giving directions as to the progress of the case. The amendment shall have effect on claims that are filed on 1/1/2015 onwards.

The claimant is now obliged to take out a summons for directions within 30 days from the moment the pleadings of the claim are deemed to be closed, which shall be returnable in 60 days for a directions hearing (O.30 r. 1(a)). Within that period the claimant shall not take any action unless for an interim order (O.30 r. 1(a)). Prior to the amendment, the summons was taken out within 10 days and was returnable in not less than 4 days. The new regulation allows for more flexibility so that the parties fully comply with the regulation and meet the needs of their case. The flexibility shall be used wisely however, as the period of 30 days is not extendable unless specific reasons are established that would justify the extension and the exercise of the Court’s discretionary powers to give the extension (O.30 r. 2(b)).

Form 25 for the taking out of a summons is retained (O.30 r. 1(b)) and its Annex shall be completed and filed within 30 days from the service of the summons (O.30 r. 2(a)). The necessity to complete the Form promptly and adequately is evident by the provision stating that any directions given by the Court at the directions hearing shall only be based on the requests filed with the Form and a party who has not adequately completed the Form has no right to submit any request orally (O. 30 r. 3(b)). The Annex attached to the Form provides the possibility to apply for miscellaneous orders, thus establishing the directions hearing as an effective case management procedure dealing with all the emerging aspects of the case (O.30 r. 3(b)).

As it stood, Order 30 did not make precise reference to the “obligation” of the claimant to take out a summons and the Court could set the case for directions in its own initiative. The amended rule makes reference to this obligation and provides that in case it is not fulfilled the Registrar shall serve a notice on the claimant, with which the claimant is informed of this omission and asked to take out a summons within 30 days (O.30 r. 1(c)). In the event the claimant does not comply with this provision, the claim shall be deemed as abandoned and dismissed by the Court at the end of the 60-day-period, with the costs awarded against the claimant (O.30 r. 1(c)). The same applies in relation to counterclaims (O.30 r. 1(c)).

The dismissal of the claim or counterclaim shall not preclude the filing of a new claim or counterclaim with the same cause of action (O.30 r. 1(d)), however the payment of the costs shall be a prerequisite prior to filing a new claim and the fees for filing the new claim shall be twice as much of the fees payable in accordance to the scale of value of the claim or counterclaim in each case (O.30 r. 1(e)). It is evident that the parties’ non- compliance with the rule may prove fatal to the claim or at least have significant effects on it.

An innovating procedure, which is introduced to the civil legal system of Cyprus with the amendment of Order 30 is the allocation of claims to “schedules”. This practice is well-established in the United Kingdom with the allocation of claims to the small claims track, the fast track and the multi-track, depending on the value of the claim, the costs incurred, the complexity of the subject matter and the witnesses involved (Civil Procedure Rules of England and Wales, Parts 27, 28 and 29 and the respective Practice Directions).

Rule 6 of the amended Order 30 states that claims, the financial dispute of which does not exceed the amount of €3.000 are allocated by the Registrar to a “Fast Trial” schedule. Accordingly, rule 8 states that claims, the financial dispute of which does exceed the amount of €3.000 are allocated by the Registrar to a “Hearings” schedule. The reasoning behind the allocation of claims in accordance to their value is clearly for practical purposes, as more straightforward types of cases of limited financial value should be dealt with accordingly.

As will be seen from the analysis which follows, the purpose of allocating claims to these “schedules” is the effective management of cases so that the parties are informed well in advance in relation to the course of their case. As regards the practical implications of the allocation system, the amended rule provides a non-exhaustive framework of directions available at the discretion of the Court at the directions hearing.

The rationale behind the allocation of cases to the “Fast Trial” schedule is the avoidance of giving oral evidence by the parties or their witnesses. The rule provides for directions given by the Court for the exchange of evidence in writing, taking into consideration the number of witnesses that a party intends to call in support of its case and the preparation time of the evidence needed (O.30 r. 5(1)). First, the claimant files the evidence within the timeframe that the Court will set and subsequently the defendant or any third parties file their evidence (O.30 r. 5(2)). Additionally, at the directions hearing, the case is scheduled for final submissions, in writing or orally, at the discretion of the Court, based on the representations of the parties (O.30 r. 6).

As an exception, the Court may give directions for a person who has already submitted written evidence to give oral evidence if the Court deems this necessary or following an application by a party (O.30 r. 7). The application is submitted in writing by summons one month prior to the date the case is scheduled for hearing (O.30 r. 7(b), (c) and (d)). The name of the person whose oral evidence is needed shall be included in the application, as well as the reason for the necessity of giving oral evidence and the estimated time required (O.30 r. 7(d)). The application is scheduled for oral submissions and the Court, having heard the parties, exercises its discretionary powers in order to issue on the same day such an order with the sole objective of clarifying the evidence (O.30 r. 7(e)). The concise nature of the procedure for cases falling under the “Fast Trial” schedule is still preserved since the time allocated for the examination-in-chief or the cross-examination of a party or witness shall not exceed 30 minutes, always subject to the discretion of the Court (O.30 r. 7(e)).

In relation to the cases allocated to the “Hearings” schedule the Court gives directions for the trial of the case on the basis of the obligation of the parties to submit to the Court a list with the names of witnesses whom they intend to call, as well as a summary of the evidence of each witness (O.30 r. 5(3)). A witness who is not included in the list of witnesses shall only be called if the party shows a good reason for not including the said witness in the initial list (O.30 r. 5(3)). Where the parties agree, the Court may give directions for the exchange of full evidence in writing so that the procedure in the “Fast Trial” schedule is followed for the ease of the parties and the procedure (O.30 r. 5(4)).

The cases are heard on the basis of the written evidence filed before the Court and the examination-in-chief, cross-examination and re-examination follow, provided these are conducted in accordance to the timetable set by the Court (O.30 r. 8(a)). The time allocated for the examination-in-chief is 15 minutes while the time allocated for the cross-examination and the re-examination is at the discretion of the Court. Indicatively, the time allocated for the cross-examination shall be 60 minutes and the time allocated for the re-examination shall be 10 minutes (O.30 r. 8(c) and (d)).

The evidence submitted by the parties in writing shall have the form of an affidavit, constitutes the complete evidence that shall be given to the Court by a witness and shall be drafted in accordance to the factual claims included in the writ of summons and the pleadings filed (O.30 r. 5(5)(i),(ii) and (iii)). Furthermore, the evidence filed shall make reference to documents or objects supporting the allegations made (O.30 r. 5(5)(iv)).

An important provision which has been inserted with the objective of maintaining focus on the material issues in dispute is the provision which states that any references to irrelevant facts or any lengthy submissions shall not be taken into consideration during the trial of the case (O.30 r. 5(5)(v)). Also, the Court, prior to the commencement of the trial, has the power to determine which facts or references are irrelevant to the issue in dispute, matters which shall not be examined or cross-examined. For the avoidance of allocating time to irrelevant issues, the costs shall be incurred by the party who introduces irrelevant facts or unnecessarily delays the Court (O.30 r. 5(5)(vi)).

The Court preserves its discretionary powers to give any directions, additionally to the provisions included in the amended Order 30, as it deems just under the circumstances (O.30 r. 9). Overall, the Court shall exercise its powers in accordance to the criteria itemized in rule 9 which, in general terms, promote the active management of cases and thus further the overriding objective. The provisions in rule 9 advance proportionality as a criterion of fairness, enhancing the Court to allot its resources according to the value, the importance and the complexity of each case. The mitigation of costs throughout litigation and ensuring that the parties are on an equal footing, adequately prepared and informed about the course of the case are also principles which are reflected in the wording of rule 9.

The amendments promote the active role of the Court in the management of cases as greater powers are inferred to it so that it applies its discretionary powers and intervenes in order to give effect to the objectives promoted in the new Order 30. The Court’s role is enhanced as it is given the duty to control the progress of a case, to assist with the identification of issues at an early stage, to manage the issues that emerge, ensure that the costs incurred are proportionate to each step of the case and ensure that the trial proceeds quickly and efficiently so that it is not unjustifiably prolonged (reflecting the provisions of the Civil Procedure Rules of England and Wales, Part 1.4).

The amendments introduced are seen as a transitional phase for the civil legal system, as more changes are due to be introduced in due course, thus fully implementing the claims allocation practice. These changes underline the need to change the mentality currently overwhelming the legal practice towards the advancement of an efficient and just civil legal system.