A mandatory injunction is a type of court order that compels the respondent to take specific positive action, as opposed to a prohibitory injunction, which restrains them from doing something.
In other words, while a prohibitory injunction requires a party not to act, a mandatory injunction obliges them to act in a particular way. Both types of injunctions are remedies inherited from English common law, and their use in Cyprus is in many respects analogous to English practice. Nonetheless, despite the similarities, this article focuses on the particular features of Cypriot law in this area.
Legal Basis and Requirements
In the Republic of Cyprus, the power to issue injunctions (interim measures of protection) is governed by the Courts of Justice Law 1960 (Law 14/1960). Specifically, section 32(1) empowers the courts to grant injunctions of any kind - interim, perpetual or mandatory - “in all cases where the Court considers it just and convenient to do so”. This provision, therefore, expressly allows for mandatory injunctions in Cypriot proceedings.
At the same time, Cypriot law, following the doctrine established in the English case The Siskina and adopted by the Supreme Court of Cyprus, sets out conditions that must be satisfied for any interim relief. The criteria are incorporated into section 32(1) of the 1960 Law.
To obtain an interim injunction (including a mandatory one), the applicant must establish:
- The existence of a serious question to be tried. In other words, the claim is not manifestly unfounded; from the materials presented, there arises a disputable demand, which ought to be determined on the merits (аt this stage, the court does not resolve the dispute finally, but the claimant must show at least a prima facie case).
- The probability of entitlement to the relief sought. The applicant must demonstrate that, on the preliminary evidence available, they are likely to be entitled to the relief claimed. This “probability” does not equal full proof of the right, but means more than a mere possibility of success.
- Risk of injustice in the future. The court must be satisfied that, without the injunction, it will be difficult or impossible to secure full justice later, or irreparable harm will be caused. Put simply, without the interim measure, the situation may irreversibly deteriorate, and the claimant’s eventual victory will prove empty (for example, the respondent may conceal or dissipate assets, destroy evidence, etc).
If all three conditions are met, the court then assesses whether granting the injunction would be just and convenient in light of all the circumstances. In particular, the preservation of the status quo – the balance of the parties’ interests as it stood prior to the dispute – is taken into account. The court also considers whether there was undue delay in seeking the measure, whether the harm to the respondent would be disproportionate, and whether the applicant acted in good faith (the principle of “clean hands”).
It is important to note that the above criteria apply to all types of interim injunctions, whether prohibitory or mandatory. The law does not set out special requirements specifically for mandatory injunctions – they fall under the general requirements of section 32(1). Nevertheless, in practice, the courts approach them somewhat differently, which is examined below.
Particular Features of Mandatory Injunctions
Mandatory injunctions are regarded as a more radical measure than ordinary prohibitory injunctions, since they require active conduct and often alter the existing state of affairs rather than merely preserve it. For this reason, the courts show considerably greater caution in granting them. As emphasised in case law, the power to issue a mandatory order must be exercised with “the greatest possible caution”. Indeed, the courts stress that such injunctions are granted extremely rarely, only in exceptional circumstances. In other words, the applicant must convince the court that without the mandatory order, justice cannot be done, and this must be sufficiently evident from the materials».
One reason for the rare use of mandatory injunctions is their impact on the status quo. The general principle is that interim measures should not predetermine the outcome of the substantive dispute. By ordering the respondent to act, the court may, in effect, partly satisfy the claimant’s claim even before trial. For example, an order requiring something to be done may coincide with the relief ultimately sought in the claim. Courts are usually reluctant to grant such relief at the interim stage, in order not to deprive the respondent of the right to a full hearing. If, however, a mandatory measure would effectively confer upon the claimant the final benefit that they hope to obtain in the action, the court will most likely refuse such relief (particularly at an early stage).
Nevertheless, there are situations where, without positive relief, it is impossible to preserve fairness pending trial. A classic example is the need to restore the status quo disturbed by the respondent’s unlawful acts. If the respondent has taken action before trial that infringes the claimant’s rights (for example, unlawfully occupying property, dismantling equipment, cutting off an essential service, etc.), the court may consider an interim order compelling the respondent to restore the original position during the proceedings. In this case, the injunction does not so much alter the status quo as return to it, and may therefore be justified to prevent greater harm. The English courts traditionally state that an applicant for a mandatory order must present particularly cogent evidence and clarity of entitlement, exceeding the usual threshold for prohibitory measures. A similar approach applies in Cypriot courts, given the common origin of the doctrine.
Application in Practice
In practice, mandatory injunctions are used relatively rarely and, as a rule, not on their own, but in combination with other interim measures. Most often, they are sought together with ordinary (prohibitory) injunctions within the same application – for example, simultaneously requesting that the respondent be prohibited from doing certain acts and be compelled to carry out other necessary acts. In such combined applications, the procedure and the court’s workload are practically the same as in the case of an ordinary injunction; essentially, there is simply one more head of relief sought. Accordingly, the applicant’s costs (court fees, legal preparation) will be comparable to those for a standard injunction, provided the mandatory relief is sought in the same proceedings.
The procedure for obtaining a mandatory injunction in Cyprus is largely identical to that for any interim injunction. The applicant must file a reasoned written summons within the main action, supported by a detailed affidavit from a person with personal knowledge of the facts. The affidavit sets out the circumstances justifying the relief and demonstrating compliance with the above criteria – serious question, probability of right, and risk of injustice. The judge considers the application on the basis of the written evidence, may order an oral hearing, and if necessary, allow cross-examination on the affidavit. If the injunction is granted, the claimant will usually be required to give an undertaking in damages to compensate the respondent for any loss suffered if the order later proves to have been wrongly granted. Normally, the court is satisfied with a signed undertaking for a specified sum, without requiring actual deposit of funds. This condition protects the respondent: if it later transpires that the order was unjustified, the respondent may recover compensation under the undertaking.
As to typical situations where a mandatory injunction may be required, they are varied. A few examples include:
- Preservation of goods in the supply chain. In a dispute over title to goods in transit, the court may order the buyer to instruct the shipowner not to discharge the cargo until further order. This secures the subject matter of the dispute pending the determination of ownership.
- Notification of third parties of the lack of title. Continuing the above example, the court may order the buyer to notify the sub-buyer that title to the goods has not passed, and therefore, they have no right to dispose of them. This protects bona fide third parties and prevents further movement of the disputed asset.
- Restoring the prior position during the dispute. Where the respondent has taken unilateral action infringing the claimant’s rights, a mandatory injunction may require them to restore matters to their previous state until trial. For example, the court may temporarily order the respondent to remove a structure erected on the claimant’s land, or to reinstate access to premises or information unlawfully withheld. Though such measures are uncommon, they may be indispensable to prevent further harm and keep the subject matter stable.
- Terminating continuing defamatory conduct. Where the respondent has made a defamatory publication online regarding the applicant, which by its nature constitutes continuing defamatory conduct (such as a news article on a website, or a post on a web application) the court may temporarily order the respondent to remove it from the website, to prevent further access of users to the defamatory publication.
It should be emphasised that mandatory injunctions are usually granted in the context of existing substantive proceedings – that is, together with a statement of claim on the merits. Cypriot courts traditionally do not grant interim measures “in the abstract”, without a substantive action, save where expressly provided (such as the recent expansion of jurisdiction to grant free-standing Mareva injunctions in support of foreign proceedings). Therefore, a demand solely for mandatory relief, without an underlying cause of action, would be incompatible with the ancillary character of interim measures.
Finally, effective enforcement of an injunction is as important as obtaining it. Non-compliance with any court order – prohibitory or mandatory – is treated as contempt of court and may entail severe consequences. The contemnor faces fines and, in serious cases, imprisonment. Respondents, therefore, usually comply even with onerous mandatory orders, given the real risk of punishment. In certain circumstances, the court may use special enforcement mechanisms: for instance, issuing a search order (Anton Piller order) requiring the respondent to permit the claimant’s representatives to enter premises to seize evidence. Such orders are themselves a form of mandatory injunction and illustrate the willingness of Cypriot courts to employ active measures where this is necessary for the administration of justice.
Final Thoughts
Mandatory injunctions are not a matter of routine. They are granted only in exceptional circumstances and where the need for positive relief is both urgent and compelling. Yet, when obtained, they can be decisive, ensuring that rights are not only protected in theory but enforced effectively in practice. As Cypriot courts emphasise, these measures must be approached with the utmost caution, precisely because they often require a party to alter the status quo.
At our firm, we guide clients through every stage of the process – from assessing whether the strict criteria for a mandatory injunction are met, to preparing robust evidence and ensuring compliance with the court’s directions. Our aim is to safeguard our clients’ interests by securing timely and effective remedies, even in the most complex and high-value disputes.
Fortior Law is a dynamic and growing international dispute resolution practice. Our Cyprus office assists clients with applications for mandatory injunctions and a wide range of interim relief before the Cypriot courts. For further information, please reach out to your contact at Fortior or write to [email protected]. We also advise on interim measures across other jurisdictions.
