Progressing the caseTypical procedural steps
What is the typical sequence of procedural steps in commercial litigation in this country?
Civil actions of a commercial nature are generally commenced by a writ of summons filed at the district court. An application for interim relief is usually filed at this stage, in which case its hearing will be heard in priority. The particulars of the claim will either be included in the writ or will be filed and served separately. The defendant will then either file a conditional appearance together with a set aside application or a regular appearance and a defence statement, which may also include a counterclaim. A reply and defence to the counterclaim (if applicable) will also be filed by the claimant.
The claimant will need to take out a summons for directions and fill out a schedule with the directions that he or she intends to seek from the court on preliminary matters such as:
- discovery and inspection of documents;
- points of law raised by the pleadings;
- consolidation of actions;
- security for costs;
- provision of better and further particulars; and
- preparation of admitted facts by all parties.
The defendant will then fill out a similar schedule, and the requested directions will be given by the court during the directions stage.
Once all preliminary matters are completed the parties will be ordered to produce a list of their witnesses together with a synopsis of their testimonies. The court will then schedule the case for hearing and provide specific time frames for the examination, cross-examination and reexamination of each witness.
Evidence at the hearing is given via oral testimony unless the claim is less than €3,000 or the parties agree to produce written evidence.
Once the examination of all witnesses is completed, the parties may address the court for the purposes of summing up the evidence and legal argument.Bringing in additional parties
Can additional parties be brought into a case after commencement?
Yes; the court may, at any stage of the proceedings, either upon or without the application of either party, order that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added.Consolidating proceedings
Can proceedings be consolidated or split?
The court may consolidate two or more actions pending before it that involve a common question of law or fact of such importance in proportion to the rest of the matters involved in such actions as to render it desirable that the actions should be consolidated. It is also possible for the court to split proceedings if it is satisfied that they cannot be conveniently tried or disposed of together.Court decision making
How does a court decide if the claims or allegations are proven? What are the elements required to find in favour, and what is the burden of proof?
A claimant bears the burden of proof and must adduce sufficient evidence to satisfy the court of the truth of his or her case on a balance of probabilities. The standard required will, however, vary depending on the gravity of the allegation made and the nature of the claim, so the more serious the allegation (eg, fraud), the higher will be the required degree of proof. Once the factual basis of the claimant’s case is proved, the court will need to consider whether the facts proved actually entitle the claimant to the remedies requested or to any other remedies.
How does a court decide what judgments, remedies and orders it will issue?
A claimant must explicitly state in his or her statement of claim the relief requested, and the court may grant it once it is satisfied that the said relief is available under Cyprus law and it is justified on the facts proved by the claimant. Depending on the circumstances, the court may grant a remedy that is not expressly requested by the claimant but that is justified by the facts proved.Evidence
How is witness, documentary and expert evidence dealt with?
Any evidence that is sought to be admitted must be relevant to the facts in question and must not fall within any rule of exclusion (eg, illegally obtained evidence, evidence protected by privilege).
In general, a witness cannot provide an opinion on a matter on which he or she is not qualified to give expert evidence. Such opinions must generally be given by expert witnesses, once the court is satisfied about their competence. Expert witnesses have an obligation to assist the court and must remain objective.
Both witnesses and experts are subject to cross-examination by the other party, which may also call another witness to provide evidence in rebuttal.
How does the court deal with large volumes of commercial or technical evidence?
Parties are generally free to present their case as they wish, while the court will determine the issues in questions as presented without being expected to have commercial or other technical knowledge and without having at its disposal an independent expert or adviser. The parties to the proceedings must therefore be mindful of this so that they present their case in a clear, simple and illustrative way, preferably with the help of an expert witness whose testimony (if relevant, admissible and uncontested) will have an important bearing on the court’s findings.
Can a witness in your jurisdiction be compelled to give evidence in or to a foreign court? And can a court in your jurisdiction compel a foreign witness to give evidence?
A witness located in Cyprus may be compelled to give evidence for the purposes of foreign proceedings conducted in another EU member state (with the exception of Denmark) by virtue of Regulation (EC) No. 1206/2001. Similarly, a Cypriot court can compel a foreign witness located in another EU member state to give evidence for proceedings carried out in Cyprus.
For proceedings conducted in non-EU member states, the matter is regulated by bilateral treaties on interstate legal assistance and by the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, which has been ratified in Cyprus.
How is witness and documentary evidence tested up to and during trial? Is cross-examination permitted?
As explained above, any evidence that is sought to be admitted must be relevant to the facts in question and must not fall within any rule of exclusion (eg, illegally obtained evidence, evidence protected by privilege). Once adduced, the evidence is subject to cross-examination. Failure of a party to cross-examine a witness on a particular point is generally considered to be an acceptance of that witness’s position in relation to that point.Time frame
How long do the proceedings typically last, and in what circumstances can they be expedited?
The average length of civil proceedings at first instance is three to six years, depending on a number of factors such as the court’s schedule, the interim procedures and the volume and complexity of the evidence. The procedure may be accelerated if a summary judgment is issued, if all parties agree to produce evidence in writing or if the parties agree to restrict the disputed facts to a minimum. Claims under €3,000 are usually heard much earlier as evidence must be given in writing.Gaining an advantage
What other steps can a party take during proceedings to achieve tactical advantage in a case?
Some of the most common methods for obtaining a tactical advantage in a case are:
- to obtain a freezing order or injunction, or both, against a defendant pending final determination of the case;
- to obtain disclosure orders, so that the claimant is provided with material information that could not otherwise be had;
- to apply for summary judgment, thus forcing the defendant to present its case in detail at an early stage; and
- to apply for further and better particulars of the claim or defence, which would make it easier to respond to the allegations made.
If third parties are able to fund the costs of the litigation and pay adverse costs, what impact can this have on the case?
If such an arrangement is not considered unenforceable and void (as explained in question 15), we expect that it will improve access to justice and the quality of the services provided. At the same time, however, it will inevitably increase the courts’ workload and cause further delays.Impact of technology
What impact is technology having on complex commercial litigation in your jurisdiction?
While Cypriot courts maintain a rather conservative approach towards technological innovation (eg, we do not yet enjoy the benefits of electronic filings, e-discovery, technology-assisted document reviews and paperless trials), the government’s decision to establish a specialised Commercial Court and the recent remarks of the Supreme Court that ‘In an ever-changing field of technological progress, a corresponding adjustment to the field of law is also needed’ (Civil Appeal No. €325/2016, 14.11.2018) signify that change is soon going to occur in this regard.Parallel proceedings
How are parallel proceedings dealt with? What steps can a party take to gain a tactical advantage in these circumstances, and may a party bring private prosecutions?
Depending upon their nature, the existence of parallel proceedings may give rise to various considerations. As a general comment, the court has inherent powers to control proceedings before it with a view to avoiding multiplicity and the risk of irreconcilable judgments. For instance, where civil proceedings involving the same cause of action and between the same parties are brought, the court dealing the subsequent case may stay its proceedings, even if the initial proceedings are pending in a different jurisdiction. Parallel civil proceedings may also give rise to the doctrine of res judicata. Accordingly, the party whose interests are adversely affected by the existence of parallel proceedings should apply for the appropriate relief under the circumstances. Where there are relevant criminal, administrative or other proceedings, a judgment of a competent court or tribunal may be adduced as evidence before the civil court provided it is relevant and admissible.
As to the right to bring private prosecutions, even though the right to prosecute is conferred upon the Attorney-General, the police and other appropriate authorities, it is not exclusive but supplementary to the right of the victim of a crime to prosecute the suspect. Accordingly, an individual does have a right to institute criminal proceedings provided he or she is aggrieved by the offensive act. This means that his or her rights must be directly affected.