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It has been recently recognised and established by the Supreme
Court of Cyprus the jurisdiction of the Cyprus Courts to issue
discovery and disclosure orders namely the so called Norwich
Pharmakal orders and Banker's Trust orders.
In the leading English case NORWICH PHARMAKAL –V-
CUSTOMS & EXCISE COMMISSIONERS it was held that although as a
general rule, no independent action for discovery would lie against
a person against whom no reasonable cause of action could be
alleged, or who was in the position of a mere witness in the strict
sense, the rule did not apply where (a) without the discovery of
the information in the possession of the person against whom
discovery was sought no action could be begun against the
wrongdoer, and (b) the person against whom discovery was sought had
himself, albeit, through no fault of his own, been involved in the
wrongful acts of another so as to facilitate the wrongdoing. In
such circumstances although he might have incurred no personal
liability, he is under a duty to assist the person who had been
wronged by giving him full information and disclosing the identity
of the wrongdoer.
In the English case BANKERS TRUST –V- SHAPIRA it was
held that the Court was entitled for the purposes of giving effect
to a defrauded Plaintiffs' equitable right to trace his money
to order a bank to disclose the state of and the documents and
correspondence relating to the account of a customer who was prima
facie guilty of fraud, even though the bank had no incurred any
personal liability for the fraud, for unless there was the fullest
possible disclosure the fund could not be traced. To justify such
an order, however, the evidence of fraud against the customer had
to be very strong.
The aforesaid interlocutory remedies which are now available to
litigants before Cyprus Courts together with the recent recognition
of the Cyprus Courts' powers to issue injunctions with
extra-territorial effect, make Cyprus an attractive forum for
pursuing legal rights through Court actions.
In addition the accession of Cyprus to EU and the applicability
of the Council Regulation 44/2001 ("the Brussels Convention on
the jurisdiction and Enforcement of Judgments in Civil and
Commercial Matters) – extended the jurisdiction of Cyprus
Courts to issue injunctions in aid of legal proceedings pending
before Courts of any member state of EU as well as for the
enforcement and registration of any interim injunction issued by
Cyprus Courts in any EU Member State.
The Norwich Pharmakal orders and the Banker's Trust orders
are fully covered by the aforesaid decision of the Supreme Court of
Cyprus as well as by the Council Regulation (EU) 44/2001.
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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