Protection by means of preemptive defensive measures in litigation is an area of particular interest. In certain instances, it is vital to initiate judicial proceedings for the protection of an interest where there is an imminent threat for the occurrence of an actionable wrong or to prevent repetition of such wrong.
Such proceedings are the so called “quia timet proceedings” which are commenced against wrongful acts which are threatened or imminent but have not yet materialized.
As the name suggests (quia meaning because and timet meaning to fear, i.e. “because he or she fears”, the earliest use of such context is found in the early 17th Century by Sir Edward Coke, an English Barrister, Judge and Politician), such actions may be pursued where the commission of a wrong is anticipated and a person reasonably fears that he or she will be injured by the imminent commission of a wrong.
As such, an action as well as an application for an interim injunction (prohibitory or mandatory) in the said context, can be filed against a person or entity that threatens to commit a civil wrong in order to protect one's interests pending determination of the matter.
In Cyprus, the possibility of commencing a quia timet action as a separate cause of action was recognized by the Supreme Court in Parico Aluminum Designs Ltd v 1. Muskita Aluminium Co Ltd κ.α. (2002) 1 J.S.C. 2015.
Interim injunctions in the same context may also be issued with regard to the provisions of section 32 of the Courts of Justice Law, L. 14/1960. For an interim injunction to be issued the Court needs to be satisfied that there is a serious issue to be tried, that there is a possibility for the applicant to succeed in being granted relief and that, unless the injunction is issued, it will be difficult or impossible to do justice at a later stage.
Therefore, proven substantial risk of danger is required to satisfy the Court that such remedy shall be granted at an interim stage of the proceedings. It has been established that for the interim injunction to be granted to restrain an apprehended injury, the said injury has to be certain or very imminent “to a material extent”. Such injunction shall not be granted by merely saying “timeo”; sufficient evidence shall be given as to the imminence of the threat.
One may securely conclude that courts are not reluctant to intervene where necessary to prevent damage before it occurs, provided that the particular facts of a case suggest that such action is justified on its merits.
The content of this article intends to provide a general guide to the subject matter. Specialist advice should be sought on each particular case. For any further information, please contact Ms. Constantina Zantira.