Injunctive relief and the Audi Alteram Partem principle

The Latin maxim audi alteram partem, meaning “listen to the other side,” is a fundamental principle of natural justice. It safeguards access to justice and ensures a fair hearing for all parties—not only those formally joined in legal proceedings but also third parties whose rights may be affected.

Its origins can arguably be traced back to ancient Greece. The renowned orator Demosthenes noted that the Athenian judicial oath—attributed by some, albeit uncertainly, to Solon—required judges to listen equally to both the prosecutor and the defendant (καὶ ἀκροάσομαι τε καὶ τοῦ κατηγόρου καὶ τοῦ ἀπολογουμένου ὁμοίως ἀμφοῖν).

Although the audi alteram partem principle is widely applied in judicial systems worldwide, limited exceptions exist. These usually involve circumstances of urgency, public safety, or national security. Such exceptions must, however, be reasonable, proportionate, and justified in context.

Natural justice and procedural fairness demand that parties directly or indirectly affected by legal proceedings are given the opportunity to be heard and to challenge decisions or procedures taken in their absence.

• The Audi Alteram Partem Principle in Cyprus under the Old Civil Procedure Rules

Under the former Civil Procedure Rules (CPR), specifically Order 48, Rule 8(4), it was stated:

“Any person (other than the applicant) affected by an order made ex parte may apply by summons to have it set aside or varied and the Court or Judge may set aside or vary such order on such terms as may seem just.”

In Ktoridis Giannakis v. Alpha Bank Cyprus Ltd (2014) 1 C.L.R. 1173, the Supreme Court of Cyprus affirmed:

“It is a well-established principle in our legal system, expressed by the Latin maxim audi alteram partem, that the court does not issue an order without first hearing the other party. However, by way of exception, the legislator, in certain cases, allows the granting of ex parte relief… Order 48(8)(4), which follows O.48(8)(1), concerns every order that is issued ex parte. Its objective is evidently to provide the possibility of reconsidering a matter that was decided ex parte, when the person affected wishes to exercise their fundamental right to be heard…”

Although this rule affirmed the principle of audi alteram partem, the interpretation of “any person” under Rule 8(4) was restrictive. In Heli-Air v. Drescher (1988) 1 AAΔ 234, the Court held that this phrase did not extend to third parties unless they had applied to be formally joined in the proceedings:

“We agree with the learned trial Judge that paragraph 4 of rule 8 of Order 48 does not in general give the right to a third person to apply by summons for the discharge or variation of an interim order issued in proceedings in which such a person is not a party. We do not accept the argument that a reference to ‘any person’ covers a person in the circumstances of this case where no application to be joined as a party was made and where the very ownership and right of possession of the subject property were in issue and were sought to be determined by the Court in the course of determining an application for the discharge or variation of an interim order”.

Similarly, in Koui v. Christodoulou (2010) 1 Α.Α.Δ. 401, citing Heli Air,  the Supreme Court reaffirmed:

“The words ‘any person’ in O.48, r.8(4) do not extend to persons in respect of whom no application for joinder has been filed, in proceedings where the substantive issues remain open”.

These aforementioned rulings were received by legal practitioners with skepticism as they created confusion and also complicated the procedure unnecessarily.[1] This is because, in practice, third parties affected by an ex parte injunction often had no real connection to the main dispute or were not directly (or even indirectly) targeted by any claims. To remedy this, several judges in the interests of natural justice and fairness did not follow the strict letter of Heli Air and permitted such third parties to intervene for the limited purpose of challenging the ex parte order, without needing to be joined to the main action.[2]

For example, In Gerd Jakob v. Ivan Ivanovich Mazur (2015), the Court held:

“Since the interlocutory injunction may directly affect the applicants’ property interests… it would be unfair not to allow them to intervene… solely for the purposes of the interlocutory injunction.”

• The Approach under the New Civil Procedure Rules of 2023

The new Civil Procedure Rules  which came into force in September 2023 have provided much-needed clarity in this respect and remedied what could be described as unsatisfactory situation. Today, a third party individual or corporate entity affected by an ex parte order can challenge it without first being joined as a party to the main action.

The Court of Appeal recently confirmed this position whilst reviewing a decision where the first instance court had (falsely) rejected an application by an affected party to intervene in the proceedings. On appeal, the Court addressed both the old and new CPR regimes.

It particularly referred to New Rule 23.14, which reads:

“23.14. Application to set aside or vary an order issued without notice

(1) Any party or person affected by an order issued on an application which was not served on them before the order was issued may apply to set aside or vary the order.

(2) A person who is not already a party to the action does not need to become a party solely for the purpose of submitting an application under Rule 23.14(1)…”

The Appeal Court emphasized that neither the law nor the new rules require a person affected by an order to become a party to the action in order to challenge it. This interpretation is consistent with the decision in the English case of Cretanor Maritime Co. Ltd v. Irish Marine Ltd [1978] 1 WLR 966 and also aligns with New Rule 23.1, which allows such persons to be appointed by the court as “respondents” to the application rather than formal parties.

• Conclusion

The new Civil Procedure Rules represent a major advancement in ensuring access to justice and correcting procedural ambiguities. By affirming that those affected by court orders—regardless of party status—have the right to be heard, the Rules reinforce the fundamental value of audi alteram partem principle. This development replaces a previously rigid and overly formalistic approach with one grounded in fairness, clarity, practicality and, of course, natural justice.

By Chrysanthos Christoforou (Partner) and Maria Keliri (Associate)

Elias Neocleous & Co LLC

[1] It is the opinion of the authors that reading between the lines of Harazim Richard (2016) 1 AAΔ 2850 one could argue that the judgments of Heli Air and Koui (above) received also judicial criticism.

[2] See 1. Chivas Holdings (IP) Ltd v. Γενικού Εισαγγελέα κ.ά  (2011), 2. Nikolas Koumenidis a.o. v. Gerrard Culbert a.o. (2009,) 3. Gerd Jakob v. Ivan Ivanovich Mazur  (2015),