articles | 09 April 2019 | Soteris Pittas & Co LLC

Cyprus: Requirements for obtaining a Chabra injunction

In the case of Re Nicolaou Bros Tourist Enterprises Ltd (1999) 1 AAD 201, the Supreme Court of Cyprus, by adopting English legal principles, recognized inter alia the jurisdiction of Cyprus Courts to grant Chabra type injunctions.

In essence, a Chabra injunction is a freezing order against a third party which is not a party to the substantive proceedings at hand, and against whom the claimant has no available cause of action. (TSB Private Bank International SA v Chabra [1992] 1 WLR 231)

Such an injunction is not addressed against the third party, but against the principal defendant in the proceedings, and encompasses any assets held by the third party in its capacity as nominee or trustee of the principal defendant. Thus, a grant of a Chabra injunction will block the third party from dissipating or parting with the assets, and thus ensuring their preservation.

As with English Courts, Cyprus Courts can sometimes be reluctant in issuing such orders affecting third parties.

Briefly, when the court is asked to grant a Chabra injunction it will consider the following:

1) That there is a ‘good reason to suppose’ that assets held by a third party could later be available in the proceedings at hand to satisfy a judgment against the defendant. There is no need to establish the beneficial ownership of the defendant in a strict trust law sense, but instead to show that the defendant has ‘substantive control’. (Dadourian Group International v Azuri (2005) EWHC 1768)

2) That it is ‘just and convenient’ for the court to grant such an injunction; (Yukos Capital Sarl v OJSC Rosneft Oil Co (2010) EWHC 784)

3) A Chabra injunction may be given in circumstances in which:

(i) the third party holds, is using, or has exercised or is exercising a power of disposition over, or is otherwise in possession of assets, including “claims and expectancies of the judgment debtor or potential judgment debtor; or

(ii) some process, ultimately enforceable by the courts, is or may be available to the judgment creditor as a consequence of a judgment against that actual or potential judgment debtor, pursuant to which, whether by appointment of a liquidator, trustee in bankruptcy, receiver or otherwise, the third party may be obliged to disgorge property or otherwise contribute to the funds or property of the judgment debtor to help satisfy the judgment against the judgment debtor ………….”. [with emphasis]

* [1] The ‘good reason to suppose’ test, is more or less materially the same with the ‘good arguable case’ test.

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