Filing a claim in Cyprus and serving it to a defendant residing outside the jurisdiction of Cyprus is a process which requires strict adherence to a certain set of rules and/or procedures. The procedures change depending on which country the defendant is residing in.
The procedure is as follows:
- The claimant prepares a writ of summons and prior to the filing of the same with the Court Registrar, applies to the court for leave to have it sealed so that it can be served out of the jurisdiction. This application is accompanied by an affidavit and culminates in an order being issued allowing for the sealing of the writ of summons. The significance of this process of applying for leave (permission) to seal the writ is that it is the process by which the Cypriot court examines whether it can, and should, extend its jurisdiction over the defendant residing abroad.
- Once leave to seal is granted, the claimant files the writ of summons.
- Following the filing of the writ of summons, the claimant must then apply to the Court for leave to serve outside the jurisdiction. This application is accompanied by an affidavit and culminates in an order being issued allowing for service outside the jurisdiction.
- Once leave to serve outside the jurisdiction is granted the claimant must prepare a notice of the writ of summons. This is a standard form of notice in accordance with the Cypriot Civil Procedure Rules.
- Thereafter, the claimant must translate and serve all these documents to the defendant. The defendant should receive the following documents in their original Greek language, together with a copy in a language that he comprehends:
- a notice of the writ of summons;
- the application, affidavit and order permitting the sealing of the writ of summons;
- the application, affidavit and order permitting service outside the jurisdiction.
- other formal documentation depending on whether the Hague Convention or the Council Regulation (EC) No. 1393/2007 is applicable.
- it is also considered good practice to accompany these with a covering letter providing relevant explanation.
Council Regulation (EC) No. 1393/2007 of 13 November 2007 on the Service in the Member States of Judicial and Extrajudicial Documents in Civil or Commercial Matters, regulates the service of judicial and extrajudicial documents between European Union member states. Seeking to improve and expedite the transmission of judicial and extrajudicial documents in civil or commercial matters for service between the member states, the regulation provides, inter alia, a procedure for the service of documents via designated “transmitting agencies” and “receiving agencies” without recourse to consular and diplomatic channels, and other methods of service. These liberal methods of transmission aim to safeguard the right to a fair trial of the parties.
In order to expedite or simplify the transmission of documents, the Regulation allows member states to conclude bilateral agreements or arrangements, provided that they are compatible with the Regulation. Despite the fact that these bilateral agreements seek to facilitate the transmission of documents between member states, in various cases, the Cyprus courts determined that a possible breach of the provisions of a bilateral agreement concerning the service of judicial and extrajudicial documents leads to the annulment of the service.
This strict obligation of the parties to comply with the provisions of the bilateral agreements derives from the case Earlsfield Steel Ltd v. Joint Stock Company Electrometallurgical Steel Works (2009) 1CLR 1350, where the Supreme Court examined this matter. The Supreme Court, applying a strict formalistic framework, determined that a breach of the Agreement between Ukraine and the Republic of Cyprus on Legal Assistance in Civil Matters could not be remedied with the mechanism of Order 64 of the Cyprus Civil Procedure rules.
Although the Cyprus courts tend to take a strict and robust approach when deciding whether there is a violation of the terms of a bilateral agreement concerning the service of documents, they are not following this approach when deciding whether there is a possible breach of the Regulation.
The Supreme Court of Cyprus, applying principles established by the Court of Justice of the European Union decided in alpha Bank Cyprus Ltd ν. SI Senh Dau and others, Civil Appeals No. Ε23/2013, Ε24/2013, Ε25/2013, Ε26/2013, Ε27/2013, Ε28/2013 and Ε29/2013, that the omission of the Appellants to serve a standard form of the Regulation accompanied with the relevant English translation, should not have led to annulment of the service according to the purpose of the Regulation.
Taking everything into consideration, it is obvious that the Cyprus Courts take a more ‘liberal’ approach when deciding whether there is a possible breach of the Regulation and escape from the strict and usual formalistic frameworks. This approach is justified, as it is fully harmonized with the meaning and main purpose of the Regulation and aims to facilitate the service of documents between the European member states.