Commentary surrounding the introduction of the new Civil Procedure Rules (‘’CPRs’’) in Cyprus this September has tended to focus on the extended powers of courts as a result of the rules. Despite the fact that the novel CPRs indeed provide for such extensive judicial capacity, the latter is formulated so as to promote not only the overriding objective of the CPRs but also every citizen’s right to a fair trial, as proclaimed under Article 6 of the European Convention on Human Rights (‘’ECHR’’). In fact, the overriding objective which underpins the new CPRs, that is, to “enable the court to deal with cases justly and at proportionate cost” and ultimately ensuring a faster management of cases, alludes to Article 6 ECHR which further provides for “a fair […] hearing within a reasonable time by an […] impartial tribunal”.
Ever since the end of the two World Wars, Article 6 ECHR has in itself been a cornerstone for all modern jurisdictions and to reflect its substance in the introductory paragraphs of the new CPRs is to make a clear and bold promise for renewal and fairness in Cyprus’s civil judicial procedure. An example of a medium though which this is to be achieved is the Pre-Action Protocols introduced under the new CPRs.
Pre-Action Protocols
In exercising its powers, the court must act in accordance with the overriding objective of the CPRs and with ECHR Article 6, which in effect act jointly as the overarching reference point for courts and judges. The introduction of Pre-Action Protocols, that is, protocols which parties ought to abide by prior to the commencement of proceedings, is indeed of particular importance in this context.
These protocols aim at enhancing inter-party communication, encouraging exchange of information fully and duly between the parties regarding the claim in question, preventing the commencement of court procedures and, fundamentally, ensuring effective and timely judicial proceedings in case these appear to be inevitable.
There are currently three types of protocols in place:
1. for claims relating to a specific/fixed monetary sum;
2. for claims relating to road traffic accidents and personal injury (further types of claims are expected to follow); and
3. A general protocol governing all other claims not covered by their own specific Protocol.
Regarding the inclusion of the third general protocol in the new CPRs, this reiterates that parties, in almost every case, ought to act reasonably in terms of exchanging relevant information and documents so as for judicial proceedings to be avoided, always acting in accordance with the overriding objective. As a result, not only is transparency fostered between the parties but, in case of initiation of formal judicial proceedings, unreasonable non-compliance with such protocols will be reflected in the court’s directions (monetary and/or non–monetary), including cost-related orders.
Moreover, under the new CPRs, the court aims at advancing equality between parties, given that it may issue such an order that the party that has complied with Pre-Action protocols and conduct will not have to find themselves in a disadvantaged position in case of a breach of the said protocols by the other party, where such breach has resulted in judicial proceedings or increased costs: the party in breach will be the one facing the burden of costs. As such, in the case of commencement of proceedings, the aforementioned judicial directions and orders will ensure that both parties will be subject to a just and fair trial as provided under the overriding objective of the new CPRs and the terms of ECHR Article 6. The new CPRs therefore make it evident that even if parties do end up facing judicial proceedings they will do so in a context of enhanced fairness, under the burden of costs and judicial directions that will reflect their pre–action conduct, as well as under a speedier procedure thanks to the actions which they ought to pursue in treating the commencement of proceedings as a last resort.
Pre-Action Protocols serve a valuable function in England and other CPR jurisdictions by keeping a case outside of the court system until the parties have given proper and due consideration to their case and the other party’s case, and revealed at least some of their arguments and evidence supporting them. Such protocols have proven valuable and popular in England and they have been expanding to cover more and more areas. They discourage a culture of “shoot first, think later” or claimants commencing a claim but then not progressing it swiftly or at all for long periods of time. Pre-Action Protocols can also encourage mediation and other ADR procedures prior to the commencement of a claim. It therefore remains to be seen how far the implementation of the new CPRs in Cyprus will be in accordance with the objectives that guide them.
The content of this article is valid as at the date of its first publication. It is intended to provide a general guide to the subject matter and does not constitute legal advice. We recommend that you seek professional advice on your specific matter before acting on any information provided. For further information or advice, please contact Andriana Charalambidou, Legal Consultant at Limassol Office, Tel +357 25363685 or email Andriana.charalambidou@kyprianou.com
