A Claimant who successfully applies in Court for an injunction freezing the assets of a party places themselves in a very strong position from the outset of a dispute, a position which might bring about an early and successful outcome in that dispute. This arguably makes freezing injunctions, also known as "Mareva" injunctions from the English precedent of Mareva Compania Naviera SA v. International Bulk Carriers SA (1975) , the most important and effective type of court orders.
Purpose:
Interim freezing orders seek to prevent a party from dissipating assets in an effort to ensure that a successful litigant will be able to execute a final court decision against the defendant. In that sense there are two types of freezing injunctions that can be issued by Cyprus Courts:
(a) Freezing of assets within the jurisdiction of the Court; and
(b) Freezing of assets outside jurisdiction (Worldwide Mareva injunction)
The General Test applicable to all orders:
The precedent set in the case of Odysseos v. Pieris Estates Ltd and Another (1982) 1 CLR 557 states that Section 32 of the Courts of Justice Law (14/60) confers power on the Court to grant an injunction "in all cases in which it appears to the Court just or convenient so to do". The following conditions must also be satisfied:-
"(a) A serious question arises to be tried at the hearing.
(b) There appears to be "a probability" that the plaintiff is entitled to relief and, lastly,
(c) it shall be difficult or impossible to do complete justice at a later stage without granting an interlocutory injunction."
The general principles for issuing Court orders in Cyprus are also applicable and pertinent and can be found in another short article linked at the end of this article.
The special conditions required specifically for freezing injunctions:
In addition to the general conditions, the Claimant must additionally prove in Court that:
(a) There are movable assets,
(b) there is a risk of dissipation or alienation, and
(c) that there is a risk of non-compliance with any future decision in favour of the Claimant or for facilitating the enforcement of the decision to prevent abuse.
Whilst not an exhaustive list, the Courts will take into consideration the nature of the property, the risk of dissipation and the chance of transferring outside the jurisdiction, the financial situation of the defendant and the risk that he will not be able to satisfy a future judgment. Also relevant is the permanent residence of the Defendant along with their credit history. What is important to note is that the Courts shall not issue a freezing order if the risk of alienation or dissipation of assets is not proven by the Claimant.
Guarantee from the Claimant:
The court will usually set conditions and require guaranties from the Claimant, to undertake to compensate the Defendant, in case the latter suffers damage as a result of the injunction. If the injunction affects third parties, the court may include them in the Claimant's guarantee. Due to the drastic nature of Mareva injunctions, the Courts must ensure that the guarantee set is sufficient to cover the potential amount of loss or damage. If the guarantee is not satisfactory, the party affected by the order may request its modification by the Court.
Effect on third parties and banks:
A third party (non-party) that receives notice or becomes aware of the freezing injunction but acts in away aiding the breach of the terms of the order then they may be found in contempt of court. Similarly, upon serving of the order, banks are obligated to freeze assets and suspend any pending transactions relating to the Defendant. In the event of non-compliance the bank may face severe penalties. The banks of Cyprus usually conform with orders immediately upon serving.
Examples of cases in which freezing orders have been issued:
1. Freezing monies in a Cypriot bank;
2. Freezing money in a bank account owned by a non-party or other than the Defendant;
3. Seizure of a vehicle which was not the subject of the action and prohibition of its exit from the Republic;
4. Assets outside jurisdiction pursuant to a worldwide "Mareva" injunction.
For more details or advice regarding freezing Mareva injunctions, worldwide Mareva injunctions or court orders contact Phoebus, Christos Clerides & Associates LLC at info@clerideslegal.com or con.clerides@clerideslegal.com.
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