Cyprus: Norwhich Pharmacal Discovery Orders Before Cyprus Courts: Revealing The Real Tortfeasors

Last Updated: 14 November 2011
Article by Anastasios Antoniou

Cypriot courts have a fully established judicial power to grant interim orders over various issues with an international effect. Namely, the Cypriot legal order has incorporated the power of the courts to issue freezing orders towards protecting assets in risk of alienation or towards preserving a status quo of assets pending the final and conclusive determination of the relevant proceedings. It is possible to apply to the courts for interim measures on an ex-parte basis but is necessary for the facts to satisfy all legislative conditions enabling the court to order such measures, as well as establishing the existence of an element of extreme urgency.

The power of the Cyprus courts is not limited to freezing orders. Where justice so requires, they may issue interim specific performance orders or mandatory injunctions to the effect of instructing a person to take active steps or they may even appoint a receiver or take any steps that justice may require.

Through the application of the principles of Equity, Cypriot courts may in certain circumstances grant an order for the discovery of documents or information regarding a third party who is not a party to the proceedings. Such a relief emanates from the landmark House of Lords judgment in Norwich Pharmacal Co v. Customs and Excise Commissioners [1974] AC 133. As per Lord Reid in Norwich Pharmacal (at 175):

"(The authorities) seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did... But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration..."

Further English rulings such as Murphy v Murphy (1999) 1 WLR 282 and Bankers Trust Co v Shapira and Others (1980) 1 WLR 1274 have certainly extended and clarified the reach and form of remedy provided by a Norwhich Pharmacal order.

The Supreme Court of Cyprus has recognized the Norwich Pharmacal principle in TBF (Cyprus) Ltd and others v Emporikis Meleton Sxediasmou kai Epichirimatikou Kefalaiou Anonimis Etairias and others (Civil Appeal 10694, 13/2/2001) in which an ex-parte order was issued at first instance for the discovery and inspection of documents. The Supreme Court of Cyprus upheld the first instance granting of the order stating that:

"...Cypriot case-law does not shed light on this issue. Nevertheless, we have located English case-law that has clarified the issue...taking a positive stance on this issue".

Anastasios Antoniou LLC has recently succeeded in obtaining ex-parte Norwhich Pharmacal relief for the Claimants in an Internet libel case before the District Court of Limassol. Specifically, the Claimants suffered harm as a result of the contents of a public website wholly dedicated to their defamation, which contents were anonymous. The owners and administrators of the website used the services of third parties, their hosting companies, to conceal their true identity through the use of the so-called 'privacy services'. Anastasios Antoniou LLC sued the hosting companies for libel, since through their servers the website's contents were published and obtained on the same day of filing the proceedings an ex-pare Norwhich Pharmacal discovery order, ordering the defendants to disclose the identities of the real owners and administrators of the website. The defendants in this case were therefore innocent parties which were however the only persons able to provide the information required for the Claimants to take legal action against the actual tortfeasors.

It is evident that Cyprus courts have fully adopted the Norwhich Pharmacal principle and are willing to apply this common law rule where the conditions are satisfied for both the issuing of a discovery order against the real tortfeasors and the issuing of interim orders. Our success in an Internet libel claim goes to illustrate how these orders can be pursued and bring about the remedy sought, which would have been unobtainable by any other means.

ANASTASIOS ANTONIOU LLC  is a boutique Cyprus Law Firm, committed to the provision of the highest quality of specialized legal service. Our Cyprus Lawyers advise on  Competition Law  and  Merger Control Energy Law  and  Oil and Gas law Financial Services Law Private Investment Fundsand  Corporate Law. Our  Litigation practice  has also been strategically designed to address and resolve issues of conflict arising in all practice areas we are engaged in, thus enabling our Firm to ensure that our Clients receive the full range of legal services, from legal support, advice and drafting to the handling of complex transactions and dispute resolution.

In alignment with the constantly changing and increasingly competitive global environment, our Firm has developed a focus and specialization towards providing comprehensive legal support to particular industries such as the  Energy sector,  Aviation, the Environment IT and e-Commerce Telecommunications  and  Life Sciences.  Find out about all of the  areas  we practice the law in as well as the  industries  we provide legal support to. Our main priority is to provide the full-range of legal services in relation to our particular areas of expertise, from legal advice and counsel to  litigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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