Given the volume of interim order applications that are brought before Cyprus Courts, there has been a peculiar absence of guidance from the Supreme Court on a very important procedural issue, namely the significance of rebutting (or omitting to rebut) a factual allegation contained in the affidavit supporting the case of the opposing litigant, through the submission of a supplementary affidavit or cross-examination of the affiant.
In light of this absence, and by reference to relatively old case law, first instance courts frequently insisted that where the applicant in an interim order application omitted to rebut a denial or positive factual allegation of the respondent, either through cross-examination or through the submission of a supplementary affidavit in reply, the respondent’s version of events would in essence be preferred over that of the applicant. As a result, interim order hearings very often turned into mini-trials, with unduly long affidavits and intense cross-examinations, despite that both the nature of the proceedings and the relevant jurisprudence of the Supreme Court strongly dictate against such an approach.
In its decision of 17/7/2014 in Kouppa v Poullas Tsadiotis Limited and another, Civil Appeal No. 351/11, the Supreme Court clarified that the above approach should not be followed. The appeal concerned an application without notice for an interim order prohibiting the respondent from disposing of certain immovable property.
Initially, the court of first instance granted the interim order without hearing the respondent but after the respondent filed its opposition, the order was set aside, one of the reasons being that the applicant failed to establish that the respondent intended to dispose of the property. In making this finding, the court of first instance opined that given that the affiant supporting the opposition denied that the respondent intended to dispose of the immovable property in question, the omission of the applicant to cross examine or to file an affidavit in reply was fatal to his attempt to establish that the respondent had the said intention. According to the court of first instance, the respondent should have either applied for leave to cross-examine the affiant or to file a supplementary affidavit.
While the appeal was dismissed for other reasons, the Supreme Court criticised the above approach of the court of first instance, holding that given that the Court in such proceedings does not deal with the substance of the case and neither examines the facts in dispute, permission to cross-examine should only be given in exceptional circumstances. Similarly, supplementary affidavits should be filed only where there is “good reason” and the rebutting of allegations which are raised to oppose an order issued without notice does not constitute such a “good reason.”
Although the decision does not make new law, it is welcomed by practitioners as it helps to clarify the uncertainty in this area and clearly indicates that the fate of such proceedings should not be determined by reference to who fired the last shot.