Leave to cross-examine a person making an affidavit

Leave to cross-examine a person making an affidavit

by George Coucounis

“The Court rarely grants leave to cross-examine a person making an affidavit after issuing an interim order”

The plaintiff who applies to the Court and secures an interim order, must appear with clean hands and is considered to have disclosed all the facts and documents that affect the judgement of the Court to grant an urgent remedy of a temporary measure, without notice to the other party. Therefore, the plaintiff who secures an interim order is not justified later, after the defendant files his objection, to apply for leave of the Court to cross – examine the defendant or to file a supplementary affidavit in order to disclose information that he had concealed. The Court will not allow the plaintiff to add facts or documents that he failed to mention or submit in his affidavit when he filed the ex-parte application for urgent remedy. The same applies to the defendant who already filed his objection to annul the interim order issued.

Besides, the purpose of cross-examination of the person signing an affidavit is simply to damage his credibility on the merits of the case and the Court at this stage does not consider either the merits of the case or the disputed facts. The Court in order to allow the claimant to file a supplementary affidavit, he must demonstrate good cause, which is not substantiated by rebutting allegations put forward by the defendant for the purpose of annulling the interim order issued. Such applications will not succeed and it will be rejected by the Court on the same day, even without objection from the defendant.

The guidance of the Supreme Court in relation to the aforesaid matter is very important. In the context of its judgement issued on 23.6.2022, it decided that the Court of first instance was correctly guided by the relevant case – law on the matter. The Supreme Court stated, bearing in mind the sworn affidavits, that the purpose of the application for cross – examination was to damage the credibility of the respondent on matters of substance that will concern the merits of the case. The Court of first instance rightly pointed out that the issues concerning the substance of positions cannot be examined in the procedure of urgent measures where the disputed issues are concerned in the examination of the conditions of article 32 of the Courts of Justice Law, L.14/1960. The Supreme Court considered the approach of the Court perfectly correct and certainly no scope for its intervention was provided.

The Supreme Court further gave the following guidance, mentioning that unfortunately such applications – which are frequent despite the strictness of the jurisprudence in their approval – unreasonably delay the adjudication of applications for temporary measures and harm – instead of benefiting – the parties. Therefore, it calls on lawyers to be extremely careful in choosing such a remedy. On the other hand, the Courts should not unreasonably interrupt the scheduling of hearings, since it is possible – and without filing an objection – to examine such applications and decide upon them on the same day.

Furthermore, the Supreme Court dealing with the same matter in its judgement issued on 17.7.2014, judging the approach of the Court of first instance to be wrong on the matter that the plaintiff had the option to apply either for leave to submit a supplementary affidavit or an order of cross-examination of the director of respondent 1, stated the following. On the one hand, because in proceedings of the nature under consideration there is no place for the characterization of any of the parties as unreliable and, on the other hand, the reference made for the filing of a supplementary affidavit or for the cross-examination of the person making the affidavit to document the urgency is at least unfortunate. Urgency must be established ab initio and the picture conveyed by the affidavit accompanying the ex-parte application may not be altered or altered later either by cross-examination or by supplementary affidavit.

Moreover, as the Supreme Court stated, in the proceedings under discussion, leave for re-examination is rarely granted since in these proceedings the Court does not enter into the essence of the case nor does it examine contested facts. As regards the possibility provided by O.48 r.4(2) for a supplementary affidavit, it should not be forgotten that this possibility is provided under the condition of “good reason” documented and therefore it cannot be seen that the rebutting of the allegations put forward to set aside an order unilaterally issued could establish “good reason”. It considered it an error for the Court of first instance to connect the failure to document the urgency only with the appellant’s allegation of the intention of the 1st respondent to alienate the property.