Disclosure orders (commonly referred to as Norwich Pharmacal orders) allow a prospective plaintiff to obtain necessary information and documents from a third party that will enable the plaintiff to plead its case against the wrongdoer, trace assets or bring proprietary claims.

Alongside Prohibitory orders, Receivership orders, Chabra orders, Search (Anton Piller) orders, Anti-suit injunctions and European account preservation orders (all discussed elsewhere on the website), disclosure orders form the complete arsenal of interim relief available in Cyprus Courts.

Cyprus Legal Framework

A potential applicant seeking the issuance of a Norwich Pharmacal order must satisfy all the conventional requirements of Section 32 of Court of Justice Law (14/60) which apply to all interim injunctions. That is:

1. There is a serious issue to be tried
2. There is a visible probability that the applicant is entitled to relief
3. That if the injunction is not issued, it will be difficult or impossible for justice to be served at a later stage
4. That the balance of convenience is in favour of the Applicant
5. It is just and equitable to issue the order

In addition to the foregoing, the Court will examine if the following cumulative circumstances are satisfied:

1. A wrongdoing must have been carried out
2. There must be the need for the order to enable an action against the ultimate wrongdoer
3. The respondent must be somehow mixed up in so as to have facilitated the wrong (even innocently)
4. The respondent is likely to be able to provide information

What information can be disclosed?

At first, such orders were granted to disclose the identity of a wrongdoer.

However, Cyprus Courts have fully implemented the flexible approach of common law, thus now it is perfectly possible to obtain any kind of information since “[n]orwich Pharmacal is now a flexible remedy, which, in view of the changing situations of the present day, is also practiced in cases where it was not previously practiced.”

In practice, Norwich Pharmacal orders can be used to disclose the:

• Identities of the beneficial owners
• Bank accounts and banking details in general
• Instructions and mandates received by the nominee directors
• Communication re the wrongdoing
• Agreements and other commercial information of the legal entities involved in the wrongdoing.

Note: Norwich Pharmacal orders do not give a general right of discovery.

Can they be sought in aid of a foreign action?

The scope of Norwich Pharmacal relief has been greatly expanded in the latter years.

According to the Cyprus Supreme Court, due to the complexity of modern-day commercial activities, the scope of the order would have been unreasonably restricted if it was decided to be issued only in aid of actions within Cyprus.

Today, it is generally accepted that such orders are in principle also available post-judgment in aid of enforcement or to assist the compliance with freezing orders, including such orders made by foreign Courts.

Note: It is generally accepted that information obtained in the context of a Norwich Pharmacal order may not be used in criminal proceedings.

Further Discretion pursuant to Regulation (EU) 1215/2012 (Recast Brussels Regulation)

According to section 35 of the Recast Brussels Regulation, an application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter.

The notion of provisional measures referred to in the Regulation includes protective orders aimed at obtaining information or preserving evidence or preventing the alienation of assets.

Procedure

Norwich Pharmacal orders should be served to the respondent who will be given the opportunity to oppose the application. The Court will thereinafter decide whether to issue or not the disclosure order after hearing both parties.

While in principle a Cyprus Court does have discretion to issue a Norwich Pharmacal order ex-parte (i.e. without the presence of the other party) this approach should only be followed in cases of extreme urgency, since issues of natural justice are destined to arise.

Gagging Orders

Where warranted, the Norwich Pharmacal order can be coupled with an order prohibiting the respondent from informing any third party (other than his/her lawyer) as to the existence of the proceedings (‘gagging order’).

A gagging order will provide to the applicant the opportunity to examine the information and documents that will be disclosed before proceeding with litigation against the ultimate wrongdoer.

A gagging order is necessary in cases where the respondent may be under an obligation to notify the intended defendant. Such will be the case with financial institutions or service providers who may be under obligations to disclose the existence of the proceedings to their clients.

Bankers Trust Orders

Bankers Trust orders are a related but distinct remedy developed under the Court’s equitable jurisdiction.

The seminal case of Bankers Trust v Shapira [1980] 1 WLR 1274 (CA) concerned a defrauded claimant’s equitable right to trace the claimant’s assets. This could only be done if the bank was ordered to disclose the state and ancillary documents relating to the account of the wrongdoer.

A Bankers Trust order will only be granted if the evidence of fraud is strong. Specifically, a prospective applicant must satisfy the Court that there is a strong case that:

1. The property in question belongs to the claimant
2. The claimant has been fraudulently deprived of it
3. Delay might result in the dissipation of funds
4. There is a real prospect that the information may lead to the whereabouts of the funds

Banking Secrecy

Banking Secrecy in Cyprus is established by article 29(1) of the Business of Credit Institutions Act (Law 66(I)/97). Paragraph (2) of article 29 provides for several exceptions, including the provision of information for reasons of public interest. Such will be the case if the Court deems it prudent to issue a Norwich Pharmacal order.

Contempt of Court

Any violation of a Norwich Pharmacal or gagging order constitutes contempt of court which is punishable by imprisonment or sequestration of assets or a fine.

Any third party who while aware of the order knowingly and intentionally incites or assists in its violation may also be held liable in contempt of Court.

Cyprus Courts will treat any wilful violation with the utmost severity. In a well-known passage, often adopted by Cyprus Courts, the Supreme Court denoted the following:

«Invariably disobedience of the order of the Court undermines the effectiveness of the judicial process, a defiance of far reaching social repercussions. Obedience to orders of the Court constitutes one of the foundations of civilized life»

Our Services

Economou & Co LLC is a trusted Cyprus leader in all matters involving corporate litigation and interim relief. Please contact us if you are interested in:

• Strategic advice re the steps to be undertaken in Cyprus in order to achieve the desired result
• General advice in respect to all matters concerning corporate litigation, such as commercial fraud, civil conspiracy, jurisdictional issues, recognition and enforcement proceedings
• Filing and obtaining interim relief, including but not limited to prohibitory orders, Chabra orders, disclosure orders (Norwich Pharmacal), tracing orders (Bankers Trust), receivership orders, Search Orders (Anton Piller), gagging orders and anti-suit injunctions