Urgency in Ex parte applications


Section 9 of the Civil Procedure Law, Cap 6 provides for the granting of ex–parte interim Orders. Section 9 is a procedural section at the core, but for one provision, subsection (1) of Section 9, which has been characterized as jurisdictional. This is due to the fact that subsection (1) provides the necessary basis for the Court to exceptionally grant an Order in the absence of the other party provided the element of urgency or any other special circumstance are established. This is so, in spite of natural law principles and especially of the latin maxim “audi alteram partem” [RESOLA (CYPRUS) LTD ν. Χρήστου (1998) 1 ΑΑΔ 598].

The case of Amvrosiadou v. Coward (2013) 1 ΑΑΔ 78 indicates that urgency as a jurisdictional condition should be examined as a matter of priority and separately from the substance of the application and the conditions as set out in Article 32 of the Law of Courts 14/60.

The case of Χατζηβασιλείου v. White Knight Holdings Ltd (2004) 1 ΑΑΔ 203 attempted to give a working definition for the element of urgency as follows:

“Urgent is the matter, which becomes known to the applicant in a time that the possibility of filing for the proper procedures in order to make the request known to the other party and ensure the other party’s right to be heard, is not provided.”

It is noted that the term “time” does not pertain to calendar days. Several cases demonstrate the unimportance of time passed using a calendar calculation (Larticon v. Detergenta (2004) 1 ΑΑΔ 1121, Αριστοτέλους ν. Benfleet (2006) 1 ΑΑΔ 280, Χατζηγαβριήλ ν. ΕΣΣΕΛ (2003) 1 ΑΑΔ 606). Other factors are also taken into consideration. The Lasala (2007) 1 ΑΑΔ 162 decision illustrated that the complexity of the case justified the delay in pursuing the rights of the applicant, used for the proper tracing of the amounts alienated as a consequence of the fraud. On the other hand, and as a sidenote, the Χατζηβασιλείου case confirms that, time may not be a problem in the giving of notice to the other side but special circumstances may.

Delay is another element that has been used as a reason for refusing to grant or even cancelling an ex–parte Order. The element of delay, especially when no justification exists for it, goes hand in hand with the element of urgency, constituting a basic ingredient for its satisfaction. When examining the element of delay, the Court will need to take into consideration the possibility of success and whether the respondent has been affected in any way due to the delay. The case of Bacardi & Co. Ltd (1996) 1 ΑΑΔ 788 explains in detail the way this element ought to be taken into consideration by the Court.

Furthermore, G. Erotocritou and P. Artemis former members of the Supreme Court of Cyprus note in their Book “Injunctions” on page 20 that the reasonableness of time depends absolutely from the circumstances surrounding the case and the reasons for the delay, especially from the time that the applicant receives information as regards the probability in obtaining interim relief. It is important to clarify that the urgency of the matter at hand may arise subsequent to the formation of the basis for the claim. Therefore, the crucial time is the time the applicant receives the information regarding the probability of success and not the time of the submission of the claim [Χριστοδούλου ν. Vraets (1999) 1 ΑΑΔ 1475].

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 Agis Charalambous, at telephone 22447777 or email agis.charalambous@kyprianou.com