What is an ex-parte interim injunction in Cyprus, England and Bermuda?
An ex-parte interim injunction in Cyprus, England and Bermuda is an emergency remedy that is used to safeguard the interests of the applicant in a legal action, preventing any imminent harm or to preserve the status quo until the main dispute can be heard by the court.
Being “ex-parte”, it means that the application is made without the other party being present or notified.
Filing for an ex-parte interim injunction arises from the need to protect a party’s interests in situations where taking the regular legal route—i.e., giving notice to the other party and waiting for a court hearing—might lead to irreversible harm or defeat the very purpose of the legal action.
Here is a more detailed analysis of situations that might necessitate the filing of an ex-parte application:
- Irreparable Harm: The foremost reason is the threat of irreparable harm. If there is a genuine concern that actions by the opposing party, if unchecked, would cause harm that cannot be compensated for with money or any other remedy, then an ex-parte application might be appropriate.
- Preservation of Status Quo: Sometimes, an ex-parte injunction is needed to maintain the existing state of affairs, preventing any further changes until the matter can be fully addressed in court.
- Destruction of Evidence: If there is a risk that the opposing party would destroy or alter evidence critical to the case once they are made aware of the legal proceedings, then an ex-parte application would be justified.
- Financial Transactions: If a party believes that their counterpart is about to make significant financial transactions that would render a later judgment ineffectual—like transferring assets out of the country—an ex-parte injunction might be filed to freeze those assets.
- Confidentiality Concerns: If notifying the opposing party of a claim would result in the unwanted dissemination of confidential information, an ex-parte injunction can be sought to prevent this.
- Imminent Harm to Reputation: Especially in defamation cases or cases concerning false statements, where a party’s reputation is at stake, the speed of an ex-parte injunction can prevent ongoing harm.
- Protection from Violence or Threats: In personal cases, involving domestic violence, there is often an immediate need for protection, which makes waiting for a standard legal process too risky.
- Surprise Element: Sometimes, the effectiveness of the legal remedy requires the element of surprise. Notifying the opposing party in advance might give them an opportunity to circumvent the purpose of the injunction.
It is worth emphasizing that ex-parte applications have a significant impact because they bypass the rules of natural justice and the usual process of hearing both sides. Cyprus and UK courts, therefore, approach them with caution. An applicant seeking an ex-parte injunction has a duty to disclose all material facts, including those that might go against their case. If a court later finds out that the application was made in bad faith or relevant information was withheld, it could have severe consequences for the applicant, including costs and potential damages.
Types of Injunctions
Here are some common types of injunctions:
- Prohibitory Injunction: This type of injunction prohibits a party from doing a specific act. It aims to maintain the status quo by preventing a party from taking an action that could harm the other party or the subject matter in dispute.
- Mandatory Injunction: It commands a party to perform a positive act. Rather than just maintaining the status quo, it requires the party to take a specific step or series of steps.
- Anton Piller Order: A unique form of injunction, it allows the applicant to search the premises of the respondent and seize relevant evidence without prior warning. It is used when there is a real possibility that evidence will be destroyed or hidden.
- Mareva Injunction (or Freezing Order): It freezes the assets of the respondent to prevent them from being removed from the jurisdiction or dissipated. This ensures that if a judgment is later made against the respondent, they won’t have made themselves judgment-proof by disposing of their assets.
- Injunction in Rem: This is an injunction against a thing (property or asset, such as a ship) rather than against a person.
- Confidentiality Injunction or Gagging Order: Designed to prevent the disclosure or publication of confidential information, which could be commercially sensitive data, personal details, or even the existence of a court case (most commonly used in Cyprus).
Here is a detailed explanation of the process:
Preparation for an Ex-parte Interim Injunction:
- Grounds for Application: The applicant must prove a prima facie case, demonstrate that there is a serious question to be tried, that irreparable harm will be suffered if the injunction is not granted, and that the balance of convenience favors the grant of the injunction.
- Evidence: The applicant should gather all the evidence to support the application. This is typically done by submitting an affidavit detailing the reasons for the request. The affidavit is signed by the applicant or by a person who knows the facts in detail. It can also be signed by a member of our firm, should the applicant be unable to visit Cyprus in order to attend the court.
- Duty of Full Disclosure: When seeking an ex-parte injunction, there is a strict duty to disclose all material facts to the court. This includes any facts that might even be against the applicant’s case. Failure to do so could result in the injunction being set aside and potential penalties for the applicant.
Filing of the Application:
- The application is filed at the District Court where the defendant resides or where the registered office of a defendant company is.
- Given its urgent nature, a date for the hearing of the application is usually fixed immediately or within 2 to 3 days.
The Judge’s Decision:
- If the judge is convinced that there is an urgent need for the interim injunction to be issued, then the order is granted.
- The judge can grant the injunction as requested, modify it, or reject the application. The court may also set conditions for the grant of the injunction.
- The court, when granting the interim injunction, requires the applicant to provide a guarantee (a monetary one). This is to cover any damages the respondent might suffer if it is later determined that the injunction was wrongfully issued.
- The guarantee can be deposited with the court, usually in the form of a personal guarantee of the applicant, or a bank guarantee.
The Returnable Date:
- When the ex-parte interim injunction is granted, the court will set a returnable date. This is the date when the respondent has the right to appear and contest the injunction. It is usually set in 2-3 weeks from the day the order is issued.
- Prior to the returnable date, the applicant must serve the interim injunction order and all supporting documents to the respondent, in a language that the respondent understands.
Respondent’s Options on the Returnable Date:
- To Comply: The respondent can comply with the order.
- To Contest: The respondent can appear in court to request time to file its objection to the injunction. In that case the court will give 2-3 weeks for the respondent to submit their objection and will set the application for hearing; in the meantime, the injunction will remain valid.
Breach of Interim Injunction:
If a party breaches the terms of the injunction, they can be held in contempt of court, which can result in fines or imprisonment.
At AGP Law we are proud of our teams of seasoned litigators and barristers proficient in the complexities of injunction proceedings across Cyprus, England, and Bermuda. Whether assessing the viability of seeking an injunction, preparing and filing necessary documentation, representing clients in ex-parte applications, defending against injunction motions, or ensuring post-grant compliance, our comprehensive expertise ensures strong legal support tailored to the specific requirements of each jurisdiction.
For all enquiries don't hesitate to get in touch with our team of experts at email@example.com
The information provided by AGP Law | A.G. Paphitis & Co. LLC is for general informational purposes only and should not be construed as professional or formal legal advice. You should not act or refrain from acting based on any information provided above without obtaining legal or other professional advice.