Litigation Success – “Justice has been served”

Dr. Marina Himoni

Supreme Court issues a prerogative CERTIORARI writ annulling Mareva order preventing our Clients from using and/or transferring and/or withdrawing and/or alienating any assets and/or amounts up to the amount of US 170.000.000

Dr. Marina Himoni

Factual/Procedural Background

An interim Mareva Order (“the Interim Order”) was issued on an ex-parte basis on 07/08/2023 preventing the Respondents from using and/or transferring and/or withdrawing and/or alienating any assets and/or amounts up to the amount of US 170.000.000.

While the Order was issued in August 2023 and although it was set returnable on 25/08/2023, the Claimants struggled to achieve service upon the Respondents who were outside jurisdiction. The ex-parte application and the Interim Order were set for service on numerous dates through 2023 and 2024.

The Claimants eventually obtained an order for substituted service outside jurisdiction via courier on 10/04/2024 and the case was scheduled on 23/09/2024 for service.

On 04/07/2024 and contrary to the order for substituted service outside jurisdiction, the various pleadings were sent to the Respondents via email without any indication as to when the case was set or when the Interim Order was set returnable.

On 23/09/2024, date on which the Interim Order seemed to be returnable, nobody appear on behalf of the Claimants and there was a request by the Court to appear on the following day on 24/09/2024. On 24/09/2024 the Court, in the presence of the lawyers of both sides, highlighted the problems arising from the fact that the Interim Order did not contain the date on which it was set returnable before the Court so as to give the opportunity to the Respondents to appear before the Court before the Order was made absolute. The Court having made these findings expressed the view that the Interim Order could not be made absolute. The case was then set for 02/10/2024.

In the meantime, on 24/09/2024, our Law Firm has filed on behalf of Respondents 1 an application for leave to file appearance under protest. While the case was set for 02/10/2024, upon the initiative of the lawyer of the Claimants, the case was set before the Court on 26/09/2024. Despite the findings made by the Court, two days before, as to the lack of date on which the Interim Order was returnable and despite the application by both Respondents for appearance for leave to file appearance under protest, the lawyer of the Claimants requested from the Court the Interim Order to be made absolute. Despite all the above, the Court made the Interim Order absolute in the absence of the Respondents.

Prerogative Certiorari Writ

It is known, that among the reasons which justify the issuance of a prerogative order of Certiorari, is the violation of the rules of natural justice. Courts must act in accordance with these rules and provide every person affected by their decision the opportunity to be heard, when, by the nature of the proceedings, such a right is recognized.

It is not contested in the circumstances that the Respondents had every right to be heard in regards to the application for the issuance of the Interim Order against them and undeniably they were under the circumstances deprived of this right. In fact, while the lower Court stated on 24/09/2024 that the issued Interim Order could not become absolute since the parties did not know which date was the order returnable, two days later, the order became absolute, without seemingly considering whether the Interim Order had been served on the Respondents, and whether such service was proper, in relation to the specific date when the Respondents could have appeared before the Court to present their case.

“Each person’s right to be notified about any legal procedure related to them or which may affect their rights and the right to appear to the procedure and be heard, is the cornerstone of the System of Justice in Cyprus. “The touchstone of a fair trial is the right to be heard”, as it was mentioned in the case of Christofides (No.1) (1993), 613. The conduct of every procedure in the presence of the concerned parties, or after the concerned parties were duly notified, is the rule. A departure from this fundamental rule, can only be justified under very special circumstances. And in such circumstances, an essential condition to the validity of such decision/order, is to notify the concerned party as soon as possible.

As accurately stated in the case of Tasou (2000) 1 (B), AAD 1372, in regards to the right of a person to be heard, “The opportunity to exercise that right, is a foundation, without which the legal process cannot be supported. In Pittakis (1994) 1 AAD 297, it was stated that the compliance with the laws of Natural Justice is a requirement for the correct administration of justice. In Grigoriou v. Central Bank of Cyprus Ltd (1992) 1 B AAD 1222, it was stated that the deprivation of the rights granted by Article 30.3 of the Constitution, annuls the trial and its outcome.

In the present case, the lower Court while considering on 24/09/2024 that “the Court Orders did not mention a date by which they should be returned to the Court” and that this fact “leads to the conclusion that they can never become absolute,” two days later, on 26/09/2024, the Court made the Interim Order absolute, even though it was not definite/scheduled on that date. the lower Court did not seem to decide on that day whether service was made, how it was made, or whether it was proper service. These details are missing from the records of the Court dated 26/09/2024. The lower Court merely asked the Claimants’ lawyer whether he had any knowledge of an appearance, and when he responded that he did not, it decided and made the issued Interim Order final without further consideration.

The Supreme Court at issue, further highlighted the fact that given that that the Interim Order will be served on foreign residents, the Claimants should have taken specific steps for this purpose, and the lower Court should have, by any instructions it might give, ensured that any service it might allow abroad, would take place on such date before the date on which the issued Interim Order would be set for service, so that the Respondents, against whom they were directed, could thus appear on the date on which they would be fixed.

The obligation of the parties to promptly serve interim orders that they secure ex parte is a given. In this case, the Plaintiffs violated this obligation, since for a long period of time from the date of issuance of the orders they did nothing to secure an order for out of jurisdiction service of the issued Interim Order in the country where the Respondents resided. This deviation from a fundamental right to the administration of justice cannot be justified and what was on interest is whether the right of the Respondents to be heard in the Application for the issuance of Interim order that had been issued against them on an ex parte basis was violated, a right recognized by the principles of natural justice and guaranteed by our Constitution.

The Supreme Court concluded, without much difficulty, that there has been a breach of the rules of natural justice and that there are exceptional circumstances which justify the grant of the requested Certiorari setting aside the Interim order hence the Interim Order was in this way cancelled by the Supreme Court.

For further information on this topic please contact Dr. Pavlos Neofytou Kourtellos and/or Dr. Marina Himoni at P. N. KOURTELLOS & ASSOCIATES LLC, by telephone: +357 25 745575 or by e-mail: pnk@kourtelaw.com and/or mh@kourtelaw.com

Disclaimer

This publication has been prepared only as a general guide and for information purposes. It does not constitute or should not be read as a legal advice. One must not rely on it without receiving independent advice based on the particular facts of his/her own case. No responsibility can be accepted by the authors or the publishers for any loss occasioned by acting or refraining from acting on the basis of this publication.