Cyprus Law | Injunctions in General

Cyprus Law | Injunctions in GeneralCyprus Law | Injunctions in General

Court’s in the TRNC may at any time during the pendency of any court action therein make in the action an order for the sequestration, preservation, custody, sale, detention, or inspection of any property, being the subject of the action, or an order for preventing any loss, damage, or prejudice which but for the making of the order might be occasioned to any person or property pending a final judgement on some question affecting such person or property or pending the execution of the judgement. This procedure or order is called an injunction order which is an interim order granted by a court.

The order for sequestration referred to means an order appointing some person or persons to enter upon any immovable property, specified in the order, which is in the occupation of the person against whom the order is made, and to collect, take, and get into his or their hands the rents and profits thereof, and also the goods and movable property of such person, and to keep them for a time specified in the order or until the further order of the Court.

The order confers upon the person or persons thereby appointed full power to do everything which by the order is directed to be done, and all acts and things subsidiary thereto ; and, from the time when notice of the order is given to the person against whom it is made, it deprives him/her of every such power, subject only to his right to occupy the immovable property sequestrated and to carry on his business thereon and to use the movable property which may be thereon for the purposes of such occupation and the carrying on of his business.

In all cases of applications for injunctions the governing principle is that pending the settlement of the dispute between the parties the Court will as far as possible keep matters in statu quo.

Once a written application has been made to the court to obtain an injunction and all of the other procedures have been done, the court , would take into consideration, inter alia, how to keep matters in statu quo and the following factors to be able decide whether or not to grant the injunction;

a) Is the cause of action a serious one;
b) Are there indications that the plaintiff may be rightful in his/her case (claims);
c) If an injunction is not granted a irretrievable loss or damage would occur or it would be very hard for restoration.

Once the court hears the written application for an injunction the court must come to the conclusion that your cause of action in the main case is a serious cause of action, that there are indications that you may be rightful in your case and that If an injunction is not granted a irretrievable loss or damage would occur or it would be very hard for restoration, to be able to grant an injunction order. Usually an injunction order would be there until the end of the main case.

İf the court doesn’t come to the conclusion that your application carries the anyone of the above mentioned factors then the court shall not grant the order and would dismiss the application. If your application for an injunction is dismissed this doesn’t mean that you have lost your case. The case shall carry on with the normal procedure and a judgement shall be passed by the court once the case has been heard by the court within a hearing if not settled by the parties before and this judgement might be in your favour even though your injunction order was not granted.

Usually courts are very reluctant on hearing direct evidence which deals with the inner matters of the main case at the hearing of the injunction applications and they try excluding, if possible, any evidence which directly is evidence which would or should be put in the main case. When the court comes to the conclusion that the plaintiff may be rightful in his/her case (claims) for injunction purposes this does not mean that the judgement at the main case will be in their favour in other words that the plaintiff will win the case and that they are in the right for filing such a case. It only means that prima facia there are indications that the plaintiff may be in the right in his/her case (claims).

There is another type of injunction which is very complex and which can be granted to non-subject matter issues. The name of the injunction which takes its name from a common law case is Mareva Injunction. Unfortunately most judges in the TRNC are very reluctant in granting such orders. I don’t want to comment on why they are so reluctant in granting such orders but I must say that some advocates and judges find it very hard to understand the subject. I shall only write down the factors needed to grant such an order and not go into detail for the time being. These factors can be put down as follows;

1. A cause of action justiciable within the Jurisdiction or the right to seek interim or protective measures;
2. A good arguable case on the merits of the substantive action;
3. Proof that the Defendant has assets within the Jursidiction;
4. A real risk of obtaining an unsatisfied judgement as a result of the Defendant disposing of assets;
5. The general balance of convenience is in favour of the grant of an injunction; i.e. any harm to the Defendant does not outweight any benefit to the plaintiff.

Hak Hukuk

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