Interim relief proceedings

Australia

Australia

All superior Australian courts have a wide power and discretion to grant both interlocutory orders and interlocutory injunctions. An interlocutory application, generally speaking, is an application which seeks any order other than a final judgment. 

As in other jurisdictions, interlocutory injunctions are a species of interlocutory orders. Where those orders are sought on an urgent and temporary basis until a more extended form of relief is sought, they are often referred to as interim orders. 

Interlocutory orders (including interlocutory injunctions) can require a party to undertake or refrain from a particular act, and can be granted before proceedings have commenced, once they are on foot and after judgment has been entered. Applications for these types of orders may be made by self-represented litigants or through legal representation. 

The categories of non-urgent interlocutory orders that an applicant may seek are many and varied and include, by way of example, applications for security for costs, discovery (including preliminary discovery before proceedings have been commenced), the filing of expert evidence or orders for particulars, The evidence required to obtain non-urgent interlocutory orders will turn on the type of orders sought, although at the very least substantive interlocutory applications usually require a sworn affidavit to be filed. 

The kinds of relief that can be sought by way of an urgent interlocutory injunction are equally varied. This is because the orders have the purpose of preserving the status quo until the rights of the parties can be determined finally, and the types of matters that can be heard by the court are vast. Common urgent interlocutory injunctions include applications for the preservation of property, the freezing of assets and applications to search premises to preserve evidence.

An applicant for an interlocutory injunction (either urgent or not) must prove that: 

  • there is a serious question of law to be tried;
  • the balance of convenience favors the granting of the injunction; and
  • an award of damages (at the conclusion of the proceeding) would not be an adequate remedy. 

It is possible for urgent interlocutory injunction applications to be heard by the court ex parte, without the opposing party’s involvement. Any orders given ex parte will generally operate only for a limited period of time until the matter can be brought to a hearing. The duration of any ex parte order will ordinarily be limited to a period terminating on the return date of the summons, which should be as early as practicable (usually not more than a day or two) after the order was made, when the respondent will have the opportunity to be heard. For this reason appeals of ex parte interlocutory injunctions are not usually made to a superior court. The applicant will then bear the onus of satisfying the court that the order should be continued or renewed. A party seeking an interlocutory injunction will ordinarily be obliged to give an undertaking to pay any damages by the defendant suffered as a result of the injunction in the event that the claim for final relief at trial fails. 

The decision to grant an interlocutory injunction can be appealed on an urgent basis to a relevant appeal court. The appeal court will usually list the matter before a single judge to assess the urgency (often the same or the day following the day on which the appeal is lodged) and set a timetable based on the information provided at that first listing. 

Last modified 19 Jul 2019

Austria

Austria

Austrian law essentially provides three categories of interim (or temporary) relief measures: 

  • preventive measures, which are granted to secure the enforceability of an eventual judgment and may involve freezing a particular state of affairs or assets;
  • regulatory measures, which are granted to regulate a temporary state of affairs; and
  • performance measures, which provide a temporary performance of an alleged obligation. 

However, this categorization is of little practical importance. Despite specific provisions in certain pieces of legislation (such as such as the Patent Act, the Copyright Act or the Trademark Act), interim relief measures are mainly regulated by the Enforcement Act (Exekutionsordnung), which distinguishes between:

  • interim injunctions; and
  • execution for security.

Execution for security refers to the execution of an interim measure on the condition that the applicant pays security into court covering any potential damages to the defendant. In order to grant execution for security: 

  • the court needs to have issued an existing judgment, which will be the basis for execution;
  • the claim must be a monetary claim; and
  • the court must be convinced that:
    • without the execution for security, the enforcement of the monetary claim would be thwarted or considerably impeded; or
    • the judgment would most likely need to be enforced in states or another foreign jurisdiction in which the enforcement of the claim is not guaranteed either by international treaties or by Union law.

This section focuses on interim injunctions, which are types of preventive measures granted to ensure immediate legal protection before, during or after a trial. There are three types of interim relief injunctions:

  • for the purpose of securing monetary claims;
  • for the purpose of securing other claims; and
  • for the purpose of securing a right or a legal relationship.

For further detail on interim injunctions, see Prejudgment attachments and freezing orders.

Injunctive relief proceedings commence when one of the parties applies for injunctive relief at:

  • the court where the substantive proceedings are pending; or
  • the District Court of the domicile (Allgemeiner Gerichtsstand) of the defendant when an injunctive measure is sought prior to the commencement of substantive proceedings.

The application will usually be accompanied by supporting evidence (evidence may be merely cited in the application but parties generally enclose it to avoid the delay in having to provide it subsequently). In specialized legal matters (family law disputes, labor and social law disputes, etc.), interim proceedings may also be initiated and granted ex officio.

For injunctive relief to be granted, the claimant must demonstrate that: 

  • it has a prima facie claim, and for this purpose the applicant will need to (i) include precise allegations regarding its claim in the application; or (ii) refer to such precise allegations in the main lawsuit when the application and the lawsuit are filed at the same time; and
  • its claim risks being frustrated if no injunctive relief is granted by the court.

If the court considers that (i) the above requirements (along with other formalities) are satisfied; and (ii) granting injunctive relief would (a) respect the principle of proportionality; and (b) not result in an irreversible state of affairs, the court will order injunctive relief sought by the applicant. Further, the court may order that injunctive relief may be made conditional on the applicant’s payment of security into court.

The procedure for issuing injunctive relief is not public and, in principle (unless the claim relates to civil rights), will be conducted without hearing the opposing party. However, as the opposing party has the right to object to the court’s decision once the injunction has been granted, the courts usually serve the application on the opposing party in order to avoid a subsequent opposition (provided that notice will not to lead to a delay likely to defeat the purpose of the injunction). If notice has been given, the opposing party may reply to the application within a short deadline set by the court (usually ranging between three days to two weeks). 

Generally, injunctive relief is granted within one week of the application, although in case of urgent matters the court can grant interim relief within two or three days.

The defendant can appeal against decisions of the court within 14 days after the service of the order granting the interim measure. 

The costs of interim relief proceedings have to be advanced by the claimant. However, the claimant may be reimbursed of such costs by the opposing party if the claimant is successful in the main proceedings. 

In certain circumstances, usually when the amount in dispute exceeds EUR5,000, legal representation is mandatory. If represented by an attorney, the application for injunctive relief has to be submitted to the court in written form. Otherwise, the application may be made orally and a transcript will be taken.

Last modified 19 Jul 2019

Bahrain

Bahrain

A number of interim relief measures are available upon application to the competent courts. These include attachment of assets (for more details see Prejudgment attachments and freezing orders) and travel bans on individuals leaving Bahrain. 

Interim relief measures can be applied before, during and after judgment has been rendered (pending its execution). The law does not set out timeframes for applying for interim relief, nor does it set out the deadlines for the competent courts to issue rulings on such applications.

Bahraini law states that the claimant must submit an application to the competent court in order to obtain interim relief. The law does not further elaborate the procedure to obtain interim relief nor the criteria that an applicant must satisfy to obtain interim relief. Generally, where there is risk that the claimant’s rights may be hindered, the claimant may submit an application to obtain interim relief before the Court of Urgent Matters to expedite the measures. 

Bahraini law does not specify a timeframe for granting interim relief. That said, in practice the approximate timeframe between the commencement of the interim proceedings up to judgment would be three months. 

Litigants are not required to be represented by an attorney before the court. At each hearing (before any of the courts), the parties themselves and/or their authorized representatives can appear before the court. 

Any petition to appeal against an order for interim relief must be heard within eight days of such appeal.

Last modified 19 Jul 2019

Belgium

Belgium

The court is empowered to grant interim measures to protect the interests of the parties before the commencement and during the course of the proceedings. Such measures include ordering one party to do something or to refrain from doing something. 

The court may grant interim relief if the applicant:

  • proves that its interests will be severely and irreparably harmed in the near future if the interim relief measure is not granted;
  • proves that the granting of the measure is urgent and cannot wait to the conclusion of the proceedings; and
  •  has a claim that is prima facie valid.

Typical interim relief measures in Belgium include: 

  • an order requiring a party to pay a certain amount to the other to protect the interests of the latter during the course of the proceedings;
  • an order forbidding a party from terminating a contract;
  • an order suspending construction works;
  • the removal of a certain article from all magazines containing it; and
  • the termination of an attachment. 

Interim relief proceedings usually last a minimum of eight days from the date of the application until the date of the order. However, in cases of urgency, interim relief can be obtained in a couple of days. 

Both the applicant and the respondent may respectively appeal an order refusing and/or granting an interim relief measure. If the interim relief: (i) is refused, the applicant can appeal the decision within a month of the date of the order refusing relief; and (ii) is granted; the respondent can appeal the decision at any time until the measure is revoked or becomes final at the trial. 

Legal representation is not mandatory in interim relief proceedings.

Last modified 19 Jul 2019

Brazil

Brazil

In Brazil, the Courts are entitled to grant two different kinds of interim relief measures: 

  • Urgent interim relief, which may be granted in cases where a party claims that their right is at risk of being irretrievably lost before the final award is given;
  • Evident interim relief, which may be granted even when there is no immediate risk, but the right of the party seeking relief is substantially plausible and duly evidenced. 

Thus, the Brazilian Code of Civil Procedure allows the parties to request interim relief measures where:

  • there is enough evidence of the certainty of the plaintiff’s right (Evident); or
  • it is necessary to avoid irreparable harm that a party may suffer should the relief not be granted before the end of the proceedings (Urgent). 

Interim relief measures can be sought before proceedings have commenced, during the proceedings and after it, while pending execution of the judgment. In both cases, the alleged right may be challenged at a later stage in the proceedings.

The most common interim reliefs in civil litigation cases are:

  • injunctions, requiring a party to do or not do a particular act;
  • suspension of legal effect of certain acts; and
  • attachment orders to preserve assets (see further details in Prejudgment attachments and freezing orders).

The suspension of legal effect of certain acts means the temporary suspension of judicial acts (e.g. releasing one of the parties from the terms of an agreement or excluding a debtor’s name from the data base of credit protection agencies). In such cases, the judicial acts will not produce effects so long as the interim orders remain valid. However, if a lawsuit is dismissed or rejected, the legal effect of the judicial act will resume. 

It is possible for urgent injunction applications to be heard by the judge inaudita altera pars or ex parte, without the opposing party’s involvement. In urgent injunction applications, neither the opposing party nor its attorney is granted the opportunity to file a defense. There is no provision in the Brazilian Code of Civil Procedure specifying the term within which a judge should analyze the request for an urgent injunction inaudita altera pars, but it usually takes no longer than 48 hours. Whenever a judge grants an interim relief measure inaudita altera pars, the party against whom the decision was issued can file an appeal within 15 business days of the notification of the judgment to the parties.

The party who requests an urgent interim relief shall be held liable for damages caused to the other party if:

  • the final judgment rejects the plaintiff’s claims;
  • the plaintiff does not provide the necessary measures to serve the respondent with the lawsuit within five business days of the granting of the pre-action interim relief;
  • the relief becomes ineffective; or
  • the judge accepts the respondent’s allegation of statutory limitation period for filing the lawsuit. 

As a general rule, parties seeking interim relief measures must be represented by an attorney, except when such measures are brought by an individual before Small Claim Courts.

Last modified 19 Jul 2019

Canada

Canada

Canadian courts have discretion to grant interim relief to parties to a proceeding.  

Such relief can take the form of an injunction (an order requiring a party or a non-party to refrain doing certain acts) or a mandatory order (an order requiring a party or a non-party to perform some particular act). 

Injunctions and mandatory orders can be granted either as interim relief (i.e. before the issues in the proceeding have been finally determined) or as an ultimate remedy. For example, a court could order an interim injunction preventing a defendant from using the plaintiff’s confidential information until the matter is ultimately decided by the court, and then, following the trial of the matter, the court could order a permanent injunction preventing a defendant from ever using the plaintiff’s confidential information. When injunctions and mandatory orders are sought as interim relief, they can be sought after a proceeding is commenced and up until judgment in the proceeding is rendered.

A party seeking interim relief must prove that: 

  • there is a serious issue to be tried;
  • the party would suffer irreparable harm (i.e. harm not compensable in damages) if the injunction or mandatory order were not granted; and
  • the balance of convenience favors the granting of the injunction or mandatory order. 

A party may obtain an interim injunction or mandatory order without notice to, or the involvement of, the other parties where the injunction or mandatory order is urgent, or where providing notice of the motion for an injunction or mandatory order would undermine the purpose of the injunction or mandatory order (as would be the case where the intended injunction seeks to prevent a party from disposing of assets). Any injunction or mandatory order made without notice will generally have a temporal limit: it will only remain extant until such time that the parties receive notice of the injunction or mandatory order, and are given an opportunity to contest the injunction or mandatory order in court. A party seeking an interim injunction or mandatory order will ordinarily be required to give an undertaking to pay any damages suffered by the parties affected by the injunction or mandatory order where:

  • the damages are directly related to the interim injunction or mandatory order; and
  • the party that obtained the injunction or mandatory order is ultimately unable to prove its claim at trial. 

Typical injunctions or mandatory orders granted by Canadian courts include the following: 

  • Mareva orders that prohibit a defendant from disposing of property prior to judgment (see further details in Prejudgment attachments and freezing orders);
  • Norwich orders that compel non-parties to provide information to the party seeking the order. The information sought further to a Norwich order may help to identify potential defendants, to find and preserve evidence that may support a claim against known or potential defendants, or to identify assets;
  • Anton Piller orders (i.e. civil search warrants) that provide the right to search premises and seize evidence;
  • Labor injunctions that restrain unlawful picketing; and
  • Injunctions that restrain the continued infringement of intellectual property, or the misuse of confidential information.

A motion for an injunction or mandatory order made without notice to the opposing parties can often be heard by the court within a matter of days. If the party seeking such an injunction or mandatory order is ultimately successful, such that the court issues a temporary or interim injunction or mandatory order, the opposing parties are given the opportunity to have the interim injunction or mandatory order set aside or varied further to a subsequent motion. Such subsequent motions can often be heard within a few weeks of the original interim injunction or mandatory order made without notice (or even sooner than that if the urgency of the situation so dictates).

An injunction or mandatory order that is made on notice (i.e. because it is not urgent, or because providing notice of the motion for the injunction or mandatory order would not undermine the purpose of the injunction or mandatory order itself) can often be heard within one to three months (depending on the complexity of the factual and legal issues relating to the motion for the injunction or mandatory order). 

Other forms of common interim relief include the following: 

  • an order relaxing the rules related to the service of court documents;
  • an order striking out those portions of a pleading or an affidavit that make allegations that are frivolous or vexatious;
  • an order for a Certificate of Pending Litigation that is registered on title to property and therefore puts prospective purchasers, mortgagees, etc., on notice that there is an ongoing lawsuit relating to the property in question;
  • an order setting a timetable for the litigation, or requiring a party to comply with a timetable;
  • an order requiring a party to produce relevant documents;
  • an order requiring a party to answer a question that the party refused to answer on an examination for discovery; and
  • an order requiring a plaintiff to pay money into court.

An appeal of an order made on a motion for interim relief must generally be commenced within ten days of the date of the order. 

Generally, individuals may, as of right, represent themselves on motions for interim relief. On a motion for interim relief, a corporation typically must be represented by a lawyer (which includes an in-house lawyer) unless the corporation obtains leave of the court to represent itself (e.g. to be represented by an officer, director, or shareholder of the corporation).

Last modified 19 Jul 2019

Chile

Chile

The Chilean regulation states that the plaintiff may request the following interim relief measures: 

  • Judicial restraint of the asset or object on which the claim is based, if there are grounds to suspect the asset or object could deteriorate or be lost;
  • Appointment of a controller or guardian;
  • Retention of goods or assets, when there are grounds to suspect its diversion, destruction or concealment;
  • Prohibition to sign contracts or other agreements regarding designated assets;
  • Other measures requested by the plaintiff and granted by the court. 

For these measures to be granted by the Court the plaintiff must fulfil the following requirements: 

  • File documents that constitute a serious presumption of the right that the plaintiff claims (Fumus Boni Iuris);
  • State an irreparable harm or danger that a party may suffer should the relief not be granted before the end of the proceedings (Periculum in Mora). 

All interim reliefs will be granted upon the assets or goods that suffice to fulfil the specific amount the plaintiff is claiming, which will be determined by considering the documents the plaintiff has produced. In urgent and severe cases, the Court could grant an interim relief for a maximum period of 10 days without such documents and if the plaintiff warrants any potential liability. 

As per this requirement, all interim reliefs are essentially temporary and could be overridden if the counterparty files a warranty or if the potential risk is no longer as insurmountable. 

Interim relief measures can be sought at any time: before proceedings have commenced, during the proceedings and afterwards, while pending execution of the judgment. In any case, the alleged right may be challenged at a later stage in the proceedings. 

In urgent cases, an interim relief may be sought without the opposing party’s involvement. If the Court concedes the relief, the plaintiff must serve the decision to the defendant within a five day period, which the court could extend to a longer period with sufficient grounds. If the defendant is not served in this period, the relief will have no effect.

Last modified 14 Jan 2020

China

China

Under the law of the PRC, interim relief (i.e. a provisional measure) is mainly granted for evidence preservation, asset preservation, specific performance and advance execution. However, specific laws also provide for other special interim reliefs. For example, the PRC Special Maritime Procedure Law provides certain types of interim relief applicable to maritime claims.

Interim relief can be granted before or during a litigation or arbitration. The applicant will usually be required to file a written application with supporting documents to the competent court, but the specific procedure depends on the type of interim relief that a party is seeking to obtain. For instance, a detailed outline of the procedure for an application for an asset preservation order is provided in Prejudgment attachments and freezing orders.

Interim relief would only be granted before the commencement of court proceedings or an arbitration in circumstances where the evidence or property at stake would be irreparably damaged without the interim relief being granted. Before interim relief is granted by the court, the applicant is usually required to provide security. Generally, the court shall make a decision about whether or not to grant interim relief within five days of accepting the application or after security has been provided. In urgent circumstances, the court shall make the decision in 48 hours. Once a pre-action interim relief is granted, the applicant is required to commence arbitration/court proceedings within 30 days from the date of enforcement of the interim relief order. If this deadline is not complied with, the court may revoke the pre-action interim relief. Representation by an attorney is not mandatory for interim relief applications.

Should any party wish to challenge the interim relief order, it can apply to the court for reconsideration within five days of receipt of the ruling, and the court shall review and decide the reconsideration application within ten days of receiving it. The enforcement of the interim relief order shall not be suspended during the reconsideration process.

It is worth noting that on April 2, 2019, Hong Kong and Mainland China signed an Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings, pursuant to which, parties to certain institutional arbitrations seated in Hong Kong shall be entitled to apply through those institutions for interim relief from the people’s courts in Mainland China. This Arrangement makes Hong Kong the first and only seat of arbitration outside Mainland China to have access to interim relief from the people’s courts in Mainland China.

Last modified 19 Jul 2019

Finland

Finland

All Finnish courts have the power to grant interim relief and it is not mandatory to use an attorney or counsel when applying for the interim relief. Interim relief measures are usually meant to secure the object of the dispute before the resolution of the court, or prevent the defendant from losing its assets. The application for interim relief may be sought before or during court proceedings.

Common interim relief applications in Finland include applications to attach property, shares and / or receivables of the defendant (for further details please see Prejudgment attachments and freezing orders); prohibit the defendant from acting in a certain manner; order the defendant (or allow the applicant) to do something; or order other measures necessary to secure the applicant’s right. In intellectual property related matters, the court may be requested to issue a prejudgment attachment order in order to secure evidence before filing the claim on the merits.

Obtaining an interim relief judgment can be a relatively quick procedure. Usually, applications for interim relief will be made on notice, and the opposing party has the right to be heard. However, in cases of urgency, or in order to prevent the subject matter of the claim from being compromised, the application may be made ex parte. If the court considers that there are grounds for interim relief (namely: (i) the claimant has a prima facie right; and (ii) there is a risk of irreparable harm if the interim relief sought is not granted), the decision may be obtained in a few days. However, very urgent ex parte applications may be resolved by the court even on a shorter timeframe, including on the day of the application. 

If the court grants the relief sought, the applicant shall seek to enforce the court’s interim relief order from the enforcement authorities. Before enforcement, a party seeking relief will, as a general rule, be obliged to provide security for any loss that the defendant may incur as a result of the relief.

The justification for the interim relief will be decided together with the court’s decision on the merits. A party who has unnecessarily applied for interim relief is liable to compensate the opposing party for the damage caused by the measure and its enforcement and to cover the expenses incurred in relation thereto.

The court’s order regarding the interim relief can usually be appealed separately. It takes approximately two to three months for the upper court to resolve the appeal.

Last modified 19 Jul 2019

France

France

The French Code of Civil Procedure provides for various kinds of expedited interim relief proceedings. Representation by an attorney is not mandatory in interim relief proceedings.

The interim relief judge (juge des référés) can order any precautionary, restorative or expert measures to prevent either immediate damage or irreparable loss and/or to safeguard the rights of the claimant (e.g. to suspend or stop the diffusion of an article harming privacy). The interim relief judge can also order the payment of a debt when there are no serious grounds to challenge it. Applications for interim relief may be sought before or pending final judgment but they are usually sought before bringing an action on the merits.

Interim relief proceedings start with obtaining a date for the hearing with the interim relief judge (juge des référés). The hearing can take place at short notice, ranging from hours to a couple of months depending on the level of urgency. The judge must ensure that, based on the circumstances of the matter, the defendant has had sufficient time between the time of service of the summons and the hearing to prepare its defense. At the oral hearing, both parties can elaborate on their respective positions. The timeframe between the hearing and the order depends on the urgency of the matter.

In order to obtain interlocutory measures, applicants must demonstrate that:

  • the relief sought must be granted as a matter of urgency; or
  • there are no serious grounds to challenge the applicant’s claim.

A party may appeal against an interim relief order within 15 days of the order.

Last modified 19 Jul 2019

Germany

Germany

In Germany, there are two types of interim relief, namely: (i) freezing orders (Arrest) (section 916 ZPO seqq.); and (ii) preliminary injunctions (Einstweilige Verfügung) (section 935 ZPO seqq.). Further details of these are set out under Prejudgment attachments and freezing orders.

Freezing orders and preliminary injunctions can be issued within a short time period, i.e. within a week. The opposing party can appeal against a freezing order or preliminary injunction and such appellate proceedings generally will last for over a month before the appellate court will issue a decision. Legal representation in interim relief proceedings is mandatory in all courts apart from the Local Courts (Amtsgerichte).

Last modified 19 Jul 2019

Hong Kong, SAR

Hong Kong, SAR

The courts have wide power and discretion to grant interim relief to parties in proceedings. Like representation in ordinary proceedings, legal representation in interim relief proceedings is not mandatory. The most common interim relief applications by far are for interlocutory injunctions to restrain the commission of any particular act by the respondent until trial or a further order of the court discharging the injunction in question.

In brief, an application for interlocutory injunction may be made to restrain the commission of an allegedly wrongful act by the respondent when:

  • there is a serious issue to be tried (i.e. the claim has some expectation of success and is not a merely fanciful one);
  • monetary compensation given at trial for the allegedly wrongful act would not be an adequate remedy for the applicant;
  • the applicant is able to compensate the respondent and other affected parties for losses and damage arising from the granting of the injunctive relief if ordered by the court to do so subsequently; and
  • the balance of convenience favors the granting of the injunction. In deciding where the balance of convenience lies, the court will take into account all relevant circumstances of the case.

In appropriate circumstances, an application for interlocutory injunction may be made on an urgent ex parte (i.e. without giving notice to any of the other parties in the action) basis at the same time or immediately prior to the formal commencement of legal action. Such ex parte hearings are heard by the court as soon as possible, usually on the same day the application papers are filed with the court. If a party applies for an interlocutory injunction before an action is commenced, the injunction applied for will be granted by the court with a condition requiring the party to issue a writ of summons immediately or as soon as reasonably practical.

An application for interlocutory injunction is usually supported by the applicant’s affidavit evidence. In an ex parte application, the applicant has a strict duty to make full and frank disclosure of all material facts (even those unhelpful to their case) to the court.

Other interim remedies available include but is not limited to the following:

  • Security for costs: Where the claimant resides / is incorporated outside Hong Kong, a party can make an application for the claimant to pay a specified sum into court to meet any order for legal costs made at the trial.
  • Interim payments: The general purpose of an interim payment is to reduce monetary hardship or prejudice that the claimant may suffer leading up to the trial. Where the defendant has already admitted liability or it is clear that, if the matter proceeds to trial, the claimant would obtain judgment for substantial compensation against the defendant, the court can require the defendant to make an advance payment to the claimant.
  • Anton Piller orders: In order to prevent a defendant from destroying important documents / information, the court can grant an order which permits the claimant’s representative to enter the defendant’s premises to search for and seize certain documents which are relevant to the case.
  • Appointment of receivers: A party in a dispute over the validity of the board of directors appointments of a company and / or the ownership of the controlling stake in a company may apply for the appointment of receivers to the company to take over control of the management until determination of the dispute by the court. The court may appoint receivers to the company if it is just and convenient to do so having regard to all the relevant circumstances.

It is rare for interim injunctive reliefs to be appealed. Normally, if the aggrieved party disagrees with the interim injunctive relief granted by the judge, it will make an application to have it discharged. For an interim injunctive relief obtained by the applicant on an ex parte basis, an aggrieved party may make a discharge application at the return day hearing. The return day hearing is typically held within a week of the hearing at which such interim injunctive relief was granted by the court and its purpose is to provide an opportunity for the parties affected by the interim injunctive reliefs to make submissions to the court and for the court to decide whether the interim injunction should continue.

If no discharge application is made at the return day hearing or if there is no return day hearing because the application for interim injunctive relieve was not made on an ex parte basis, an aggrieved party may make an application to discharge the interim injunctive relief at any time. Such application will normally be heard by the court within three to six months and the court usually decides on the application within two to three months of the conclusion of the hearing.   

Appeals against interim remedies other than injunctive relief are usually heard by the court within three to six months, and decided within three to six months. Timeframes for the handing down of appeal decisions may vary greatly and would be affected by factors such as how busy the court hearing the appeal is and the complexity of the case.

Last modified 19 Jul 2019

Hungary

Hungary

Interim relief is essentially a measure ordered by the court temporarily granting (i) the relief sought by the claimant in its statement of claim, or (i) a measure aimed at avoiding further damage or preserving the status quo. The exact content of the relief is always determined by the underlying substantive law to be applied in the dispute at hand. Hungarian courts may provide a wide range of interim relief upon a party’s or prospective party’s application. Interim relief applications are common in intellectual property disputes (e.g. applications to temporarily restrain the defendant from using a trademark); and in commercial disputes (e.g. applications to temporarily suspend a payment obligation, when the dispute concerns the validity of such obligation).

Parties or prospective parties can apply for interim relief before and after filing the statement of claim. From a procedural point of view, interim relief may be granted (i) if it is deemed necessary to prevent any imminent threat of damage to the requesting party, or preserve the status quo of the subject of the dispute, or with a view to providing special protection of certain rights; and (ii) if the advantages of granting the relief sought outweigh the disadvantage that may be suffered by the granting of the relief. Additionally, the party or prospective party seeking interim relief is only required to prove that the underlying facts are probable. Evidence is not required at this point. The court may also order the requesting party to provide some security before granting the interim relief.

The court decides on the interim relief request in an expedited procedure, in which the court has to take action within eight days following the receipt of the application. Relief is granted by way of a court order, which may be appealed within 15 days of its communication to the parties.

In Hungary, interim relief cannot be regarded as an ex parte procedure, as the court consults both parties before granting the relief, unless the case is extraordinary. Since the interim relief procedure is part of the litigation and not a separate procedure, the general rules of mandatory legal representation apply here as well (i.e. legal representation is not mandatory before the district court and before the general court on appeal, but in all other cases it is). The period for which the interim relief is ordered is indefinite, but terminates when the first instance judgment becomes final, at the latest. The court, upon request, might withdraw or modify the relief if the underlying facts or circumstances change.

Exceptionally, interim relief may also be requested before filing the statement of claim, if, based on the information provided by the applicant, the court considers it probable that the interim relief has to be ordered immediately, because by the time a claim is filed, it will be too late to protect the rights or interests of the party. Where such early interim relief is ordered, the court sets a deadline no longer than 45 days, within which the statement of claim has to be filed. If the claim is not filed within this timeframe, the interim relief terminates. The request for this early interim relief has to be filed in the court which will have jurisdiction for the litigation as well. This means that if legal representation is mandatory before such a court for the main litigation, then it is mandatory for filing this request too.

Last modified 19 Jul 2019

Italy

Italy

Italian law provides for, and clearly defines, different kinds of interim measures. They include:

  • protective measures, which are sought pre-action, and are temporary in nature in that they will need to be confirmed or revoked by the final judgment; and
  • anticipatory measures, which remain effective even if they are not followed by an action on the merits.

Parties may seek interim relief measures both during the proceedings and before their commencement. Where a protective interim relief measure is granted before the commencement of the proceedings, the claimant must commence an action on the merits within the timeframe set by the judge, which shall not exceed 60 days after the adoption of the interim measure. Otherwise, the interim measure becomes ineffective.

An interim measure may be granted after a brief and concise evaluation of the case, which takes place during a hearing to which both parties are invited to participate. Generally, an interim measure will be granted where the claimant proves the presence of the following two conditions:

  • the fumus boni iuris, that is a prima facie case of the right claimed; and
  • the periculum in mora, that is a well-founded risk that the right which the interim measure seeks to safeguard may be irreparably harmed whilst the dispute is pending.

In some cases, the court may provisionally decide on interim relief requests without holding any hearing and therefore without involving the defendant (i.e. ex parte). In these cases, the courts would then re-establish the necessary dialogue (and due process) with both parties in a second phase after the interim measure is rendered. In this second phase, a hearing shall be scheduled within 15 days after the order whereby the interim measure is issued and the claimant shall be granted with no more than 8 days for the service upon the defendant of the request and of the order of appearance. These terms are triplicated in cases where service shall be made abroad. Once the other party is involved and heard, the measure can be either: (i) confirmed; (ii) modified; or (iii) revoked.

The duration of interim relief proceedings varies depending on the measure requested and on the specificities of each case. The timeframe can range from approximately one month to a year and a half. However, where the proceedings are ex parte, the judge may take just a couple of days to order the relief.

The order granted pursuant to an interim relief application can be appealed within 15 days from: (i) the date of the hearing at which the order was rendered; or (ii) when the order was communicated or served to the party, whichever comes first.

No other quick (informal) ways to obtain an interim relief judgment exist in Italy. Parties must be represented by an attorney during such proceedings.

The Italian Code of Civil Procedure lists three typical and one general interim measure. The three typical interim measures are:

  • Seizure (sequestro). This normally will involve either:
    • a judicial attachment which may be used on (i) movable or immovable assets when the relevant ownership is in dispute; or (ii) documents (a) from which evidentiary elements can be taken; (b) when the right of exhibiting them is controverted; and (c) it is necessary to temporarily store them – Sequestro Giudiziario; or
    • a preservation order might be issued on any asset of the debtor in order to preserve it, in the circumstances where there are sound reasons to believe that the debtor might deplete such assets at the creditor's detriment – Sequestro Conservativo. Further details on seizure are set out in Prejudgment attachments and freezing orders;
  • denouncement of new work and feared damages. As to the former, a party who has a grounded reason to fear that its ownership, rights in rem or possession over land will suffer an imminent damage as a result of new work commenced by someone else can denounce such new work and ask the court to issue an order preventing the work from continuing or otherwise addressing the applicant's concerns. Equally, when the grounded reason to fear imminent damage is due to a building, tree or other dominant item, the applicant may request the court to grant an order that seeks to eliminate the risk of such damage;
  • measures of preventive investigation. These are measures that can be ordered by the court prior to the commencement of the main proceeding. They aim at securing evidence in advance, thereby avoiding the risk of such evidence becoming unavailable subsequently. Usual preventive investigation measures include: (i) examination of witnesses, when there are grounds to believe that such witnesses will not be available at the hearing due to a terminal illness; (ii) inspection of objects or places; and (iii) technical examination.

The two most commonly used are: seizure, and the procedures of preventive investigation.

If a situation cannot be remedied by typical interim measures provided for by law, it is possible to ask for a general remedy (art. 700 Italian Code of Civil Procedure). The party wishing to apply for such a general remedy has to follow the same procedure and satisfy the same requirements as per a typical interim relief measure. The content of such a general remedy is established by the court on a case-by-case basis according to the precautionary need which must be met.

Last modified 19 Jul 2019

Ireland

Ireland

Interim relief is available to parties if there is an urgent need to protect their legal rights (either by preserving the status quo or preventing the respondent from taking certain action).

The majority of injunction applications may be made either in the Circuit Court or in the High Court (depending on the case). Applications for interim relief are typically sought on an urgent, time-sensitive basis and are made on an ex parte (i.e. without notice) basis.

The criteria for obtaining interim relief varies depending on the type of relief sought but the overarching principles the court will consider when it comes to interim injunctions will include:

  • whether there is a serious/fair issue to be tried;
  • damages would not be an adequate remedy; and
  • the balance of convenience lies in favour of granting the injunction.

The applicant must also give an undertaking as to damages.

There are various types of injunction which might be sought:

  • Interlocutory injunction - in circumstances where proceedings are ongoing, but not yet concluded, and is required to protect the status quo until the matters are determined fully at trial.
  • Quia timet injunction - where an actionable wrongful act is threatened (including a repetition of such an act), and the injunction is required to prohibit this act;
  • Anti-suit injunction - when an action is pending or threatened in another jurisdiction and it would be unjust for this to proceed, this injunction will prevent the action in a foreign jurisdiction proceeding;
  • Mareva injunction - where there is a concern that a defendant might remove, conceal or dissipate assets, and the injunction is sought to prevent a defendant from dissipating assets below a specified amount;
  • Anton Piller injunction - to protect evidence, this injunction provides the right for a plaintiff to enter the defendant’s premises to inspect and potentially seize evidence.

Legal representation is not mandatory to seek, or resist, interim relief. However given the potential complexity and the legal tests to be met, it is generally the case that both parties will be legally represented.

Last modified 27 May 2021

Japan

Japan

Japanese courts can grant interim (or provisional) relief to protect property and secure the enforceability of the judgment. The following forms of interim relief are available in Japan:

  • an order of provisional attachment available to potential plaintiffs (creditors) who wish to freeze the potential defendant’s (debtor’s) assets to secure collection of their monetary claims;
  • a provisional order (referred to in Japan as provisional disposition), which is used to preserve disputed property in certain types of non-monetary claims; and
  • a provisional disposition to establish an interim legal relationship between the parties to avoid substantial detriment or imminent danger caused by the disputed relationship.

Further detail on the first two types of interim relief can be found in Prejudgment attachments and freezing orders.

In relation to the provisional disposition to establish an interim legal relationship, an obligee wishing to clarify a legal relationship with an obligor can file a petition with the district court which has either (i) jurisdiction over the merits of the case; or (ii) jurisdiction over the location of the disputed subject matter. An obligee can request this measure until a judgment on the merits has become final and binding (i.e. an obligee is able to request provisional relief even in second instance). A party is not obliged to be represented by an attorney. In other words, a party is allowed to initiate or respond to a petition for provisional relief without appointing an attorney.

As to the criteria to obtain such provisional disposition, in order to be successful, the applicant must establish that there is a prima facie case that (i) the disputed legal relationship exists; and (ii) an order is required to avoid substantial detriment or imminent danger to the petitioner. Before granting this type of relief, the court will usually convene a hearing to hear both parties’ positions.

The timeframe to resolve applications to determine a provisional legal status is generally between one and four weeks from the application being filed to the remedy being awarded. An obligee may file an appeal against a judicial decision to dismiss a petition for an order for a provisional relief within an unextendable period of two weeks from the day on which the obligee was notified of such decision. Where the court dismisses the appeal for provisional relief, no further appeal may be filed against such judicial decision. On the other hand, where the court issues an order for provisional relief, the obligor may (at any time) file an objection to the order with the court which issued the order.

In addition to the above interim relief measures, in some cases, it is also possible to obtain an interim judgment, which will settle certain matters that are ripe for determination before the final judgment. An interim judgment will be binding on the court that issued it, but it will not be appealable or enforceable by the parties. Japanese law does not establish a procedure for obtaining such judgment. Japanese courts can, in their discretion, issue an interim judgment on part of the dispute before rendering a final judgment providing both of the following conditions are satisfied: (i) the element of the dispute subject to the interim judgment is independent from the main matter in dispute, and (ii) it is feasible to give judgment on that element. In addition, the interim judgment is also available when issues of liability and quantum can be determined separately, and the court considers that liability should be determined first. An interim judgment can be useful, particularly in large or complex disputes, to reduce the number of issues in dispute in subsequent proceedings. However, in practice, interim judgments are rare.

Last modified 19 Jul 2019

Kuwait

Kuwait

Interim and / or precautionary measures are equitable remedies that are at the discretion of a Kuwaiti court and may not be available in all circumstances, in particular, where damages are considered an adequate remedy. In limited circumstances, Kuwaiti courts may grant interim relief which is akin to a form of injunctive relief. For example, the courts may issue a temporary and precautionary attachment order over assets (for further detail see Prejudgment attachments and freezing orders), issue travel bans and grant freezing orders to prevent a party from dissipating or removing its assets from the jurisdiction. However, Kuwaiti courts will not issue prohibitory injunctions, such as anti-suit injunctions, as these are not recognized legal concepts in Kuwait. The most common matters for which interim relief applications are sought include seeking stay on the execution of the court of appeal judgment, or for the determination of facts, for example stopping construction until determination of true ownership, etc.

To obtain injunctive relief, an applicant will have to submit a petition requesting injunctive relief at any stage of the matter depending upon the circumstances, but usually it is in the beginning of the case. Representation by an attorney is not mandatory. The judge of the Provisional or Interim Proceedings Court should rule on the petition within a week. If necessary, the judge is able to demand that the parties appear before the court within 24 hours of the submission of the petition. In order to grant relief the judge must be satisfied that the remedy being sought by the petitioner is in fact of a provisional nature, or that the remedy sought may be irreversibly lost unless the court intervenes urgently. The judge will not grant relief where the petitioner seeks a substantive review of the matter.

Provisional orders granted by way of interim relief may be appealed to the Court of First Instance within 15 days of issuance. If there are already related proceedings pending before a court, the appeal must be taken to that court.

Last modified 19 Jul 2019

Mexico

Mexico

In Mexico, interim relief may be granted by judges before or during the course of the main litigation. Interim relief orders are provisional in nature and are granted where a quick decision is needed to deal with, for example, an imminent risk of dissipation of assets. In order to obtain personal relief there needs to be reason to believe, for example, that the person involved in the dispute may disappear or avoid being summoned to court. In cases related to property, the court may require assets to be deposited in order preserve them and ensure payment upon a favorable result of the dispute for the plaintiff.

Upon receiving an application for interim relief, the judge hearing the application will issue an order granting or refusing the requested relief within a period of one to four days. The interested party may appeal the relief order within six days after such order is notified to it. There is no specific legislation requiring mandatory representation by an attorney, but it is a common practice to appoint attorneys.

Last modified 19 Jul 2019

Netherlands

Netherlands

The Netherlands has a quick, informal procedure for obtaining an interim relief judgment. By means of interim relief proceedings, claimants can request the interim relief judge to impose interim relief on a short term basis. Interim relief measures are often aimed at: (i) requiring parties to – promptly – perform certain acts; or (ii) prohibiting parties from carrying out certain acts. Common examples are the request to suspend a contested decision with immediate effect until the appeal is decided as to the main issue, and the request to immediately lift (prejudgment) attachments on certain goods and / or bank accounts.

Interim relief can be sought before and during the (main) proceedings, as well as after a judgment has been rendered in the main proceedings. However, an interim relief judge must align his judgment with the (probable) judgment of the main proceedings.

Interim relief proceedings start with obtaining a date for the hearing with the interim relief judge. Usually, a hearing takes place within one to three weeks, although much shorter timeframes are possible in urgent cases (even within a matter of hours). A writ of summons needs to be served by a bailiff, who is allowed one week to serve, although this timeframe can also be reduced by the interim relief judge. At the oral hearing, both parties can elaborate on their position. For the defendant, representation by an attorney is optional, but for the claimant it is mandatory. After the hearing, the interim relief judge will usually issue the interim relief judgment within a week, though this could also be done faster when immediate action is required. Appealing against an interim relief judgment is possible within four weeks.

The judge in interim relief proceedings does not examine the underlying claim in detail. When the request for interim relief relates to a claim that appears to be complex, the judge will unlikely allow the request for interim relief to proceed. Likewise, the interim relief judge will only allow requests for interim relief when claimants demonstrate that they have an urgent interest that requires prompt intervention. In other words, requests for interim relief in respect of claims that are not urgent or too complex will be rejected and the claimant will be ordered to initiate (main) proceedings in the ordinary way.

Decisions granting interim relief will be of provisional nature, which means that a court decision in interim relief proceedings will not prejudice the rights of parties in ordinary civil proceedings that are pending at the time of the interim relief judgment or that might be initiated thereafter. In practice, however, an injunction or provisional measure can (and according to case law of the Dutch Supreme Court may) have irreversible consequences, which can only be redressed on appeal. For example, at the request of the claimant, the judge may stipulate in his order that the defendant shall forfeit a penalty for each day that the defendant fails to comply with the measure ordered or injunction, or for each day that the defendant acts in contravention of the decision. As the forfeited penalties are not automatically reversed, if the judgment in the ordinary proceedings is rendered in favor of the payer, the payer’s only option to reverse the situation would be to appeal the interim relief measure itself.

Notwithstanding their interim character, interim relief proceedings are not always followed by ordinary civil proceedings. Parties are not obliged to commence the main proceedings; they regularly accept the interim relief judgment and refrain from engaging in further (main) proceedings.

Last modified 19 Jul 2019

New Zealand

New Zealand

A range of interim remedies is available to parties to legal proceedings. Interim remedies are provisional measures generally granted with a view to preserving the status quo, or preventing the dissipation of assets.  Common applications for interim remedies include:

  • interim declarations; interim injunctions (injunctions are orders prohibiting a person from doing something or requiring a person to do something);
  • orders for the detention, custody, preservation, inspection, sampling of relevant property;
  • sale of relevant property which is of perishable nature or which for any other good reason it is desirable to sell quickly;
  • freezing injunctions; search orders; orders to provide information about assets;
  • injunctions restraining foreign legal proceedings;
  • applications for security for costs;
  • applications for orders for interim payment on account of any damages, debt or other sum the court may hold the defendant liable to pay; applications for further information;
  • extensions of time;
  • and specific disclosure. 

An order for an interim remedy may be made at any time, including (i) before proceedings are started; and (ii) after judgment has been given. However, the court may only grant an interim remedy before proceedings are started if the matter is urgent or it is otherwise desirable to do so in the interests of justice.

As a general rule, no order should be made in civil proceedings without notice to the other side unless there are good reasons for departing from the general rule that notice must be given. An application for interim relief must be supported by affidavit evidence.  In ex parte (i.e. without notice) applications, relief can generally be obtained within a matter of days.  If the court grants the ex parte application, the defendant is provided with an opportunity to object to the granting of relief at a subsequent hearing. At this hearing, the defendant would seek to persuade the court that any order made should not be continued. 

The criteria for obtaining relief varies depending on the type of relief sought but the overarching principles the court will consider when it comes to interim injunctions, for example, include:

  • whether there is a serious issue to be tried.  The evidence must show that the applicant has a real prospect of succeeding in their claim and, if so:
    • whether, if the applicant were to be successful at trial, damages would be an adequate remedy;
    • whether, if the respondent were to be successful at trial, damages under a cross-undertaking to pay damages by the applicant in return for an interim injunction would be an adequate remedy; and
  • if there is a question as to the adequacy of damages to either or both parties, whether it would be just and reasonable to grant the relief sought. 

The parties can appeal the court’s decision on the application for interim relief to a higher court, although leave to appeal may be required in some limited circumstances.

Last modified 20 Dec 2019

Norway

Norway

Norwegian courts have the power to order two broad categories of interim relief in connection with civil proceedings: (i) arrests; and (ii) interim measures. Both of these categories of relief are temporary and may be obtained before main proceedings are commenced. Most of the principles governing when such relief is available are equally applicable to arrests and interim measures. However, arrests are available only in cases involving a monetary claim. So, in the absence of a monetary claim, interim measures are the only form of interim relief available.

A party seeking interim relief may represent themself without the need for counsel, although this is a rarity in commercial litigation.

An application for interim relief should be submitted to the District Court where the defendant is ordinarily domiciled or, in the case of an arrest, where assets belonging to the defendant are or are expected to arrive in the foreseeable future. Both arrests and interim measures may only be granted if both the substantive claim underpinning the interim proceedings and the basis for why interim relief is necessary are established on the balance of probabilities.

Arrests

Norwegian courts may arrest assets where the debtor’s conduct gives reason to believe that enforcement of the claim would otherwise be evaded, considerably impeded or would have to take place outside of Norway. An asset arrest may be discharged if new evidence emerges showing that the claim or the basis for security no longer exists. It may also be discharged if the petitioner improperly delays the main proceedings.

An asset arrest has the effect of prohibiting or otherwise preventing the owner of the asset from dealing with it in a manner that would be prejudicial to the party in whose favor the arrest has been granted.

The interim remedy of arrest is not limited to assets. In exceptional circumstances, Norwegian courts may also exercise their power of arrest in civil proceedings by restricting an individual’s rights to leave Norway.

Interim measures

As regards interim measures specifically, those include orders compelling the defendant to carry out or refrain from carrying out an act or directing the defendant to transfer an asset into the custody of, for example, an enforcement officer. Norwegian courts may grant such measures in two circumstances. First, interim measures may be available if the defendant’s conduct makes it necessary to provisionally secure the claim because the action or execution of the claim would otherwise be considerably impeded. Second, such measures may be granted to avert considerable loss or inconvenience in connection with a disputed legal issue, or to avert destruction which is reasonably feared in view of the defendant’s conduct.

As a condition to granting interim relief, Norwegian courts may order the party requesting such relief to provide security for any compensation that may subsequently be awarded to the other party for any unjustifiable loss it suffers as a result of the relief given. If granted, both arrests and interim measures will normally be subject to a further consideration by a court following the main hearing in the course of the main proceedings. Such proceedings must ordinarily be commenced within two weeks of interim relief being ordered.

If delay poses a risk, an interlocutory order for interim relief can be made without an oral hearing. If so, the court normally rules within a few days of the application. Otherwise there will be a prior oral hearing, normally scheduled within one to two weeks.

If there has not been a prior oral hearing, the defendant may object to the order by requesting a subsequent oral hearing. If there has been an oral hearing, the defendant may appeal the order to the Court of Appeal. An appeal must be made within one calendar month from the date of the service of the District Court’s decision.

Last modified 19 Jul 2019

Poland

Poland

Interim relief measures are provisional measures sought in order to secure the claim (i.e. measures sought in order to satisfy an eventual judgment) and are referred to in the CPC as security. In pecuniary cases, security may consist, for example, of freezing a bank account, establishing a mortgage over real estate or a registered pledge over equipment and machinery, seizing movable property, or even appointing an administrator for an enterprise, all of which would be in force for the duration of the proceedings. In non-pecuniary cases, the claimant may demand that the court secure the claim temporarily by governing the relationship between the parties or granting other relief tailored to the circumstances.

A claimant may seek security (i) before legal proceedings are commenced; (ii) together with the statement of claim, or (iii) when the main proceedings are already underway. In general, the application for security will be filed with:

  • the court with jurisdiction to hear the main claim when the application is made pre-action;
  • the court hearing the claim when the case is already  underway; or
  • the court where the interim relief will be executed when the application is made after the judgment has been issued.

The court must examine applications for security immediately, not later than a week after they have been filed with the court. An application for security filed with the court before the statement of claim will be considered without the defendant being notified (i.e. ex parte). If the claimant is granted security before the litigation has commenced, the court will indicate a two-week deadline to file the statement of claim with the competent court.

The court will grant the security sought if it finds that the claimant has substantiated:

  • its claim (i.e. prima facie the claimant has a good claim);
  • its legal interest in obtaining security for the claim; and
  • that satisfaction of its claim would be hindered if interim relief was not granted.

Legal representation by an attorney is not mandatory in security proceedings. The court fee for a security application is 1/5 of 5% of the value of the case, capped at a PLN-equivalent of EUR12,000 (in cases with a value of more than a PLN-equivalent of EUR 1 million) if it is filed before the judicial proceedings or during the course of the proceedings. In other cases (when security is filed together with the statement of claim), there is no separate court fee for the application.

A defendant against whom a judgment granting security has been issued, may file an appeal within seven days of delivery of the judgment. If the court does not grant relief, the claimant may likewise challenge the court’s decision and file an appeal within seven days from the delivery of the judgment.

Last modified 19 Jul 2019

Qatar

Qatar

Interim relief proceedings are not available in the Qatar courts. However, interim relief may be granted by way of a precautionary attachment to freeze the debtor’s assets.

Last modified 19 Jul 2019

Romania

Romania

Interim relief can be granted in order to preserve the claimant’s rights, or to prevent irreparable damage to the claimant, until a final decision on the merits of the case is granted. For instance, by means of interim relief, the court will determine the children’s situation until a final decision on the divorce of the parents is reached or will suspend the effect of an administrative act until the court will rule on the validity of the act.

As a general rule, interim measures are granted only when the proceedings on the merits of the claim have already been initiated (i.e. there is an ongoing case) or, in cases expressly provided by the law, prior to the initiation of the proceedings.

Legal representation by an attorney is not mandatory in interim relief proceedings. A claim for interim measures has to fulfill the same formal conditions as any other claim in court, but it is not subject to an extensive written phase of the litigation, as the procedure needs to be resolved urgently. The court’s decision does not stand as res judicata on the substantive claim, so it does not affect the merits of the dispute between the parties.

To obtain the interim relief, the claimant must show that the prima facie analysis of the rights is in their favor and that there is urgency for the protective measures to be taken. Conventional representation by an attorney is not mandatory.

An interim relief decision can be obtained typically in two to eight weeks and the appeal phase could last a further two to four weeks. A decision granting or rejecting an interim relief application is only subject to appeal within five days of the decision.

Last modified 19 Jul 2019

Russia

Russia

Interim relief measures aim to secure enforcement of a future judgment and to prevent harm to the subject of the case or to the applicant.

The law does not provide an exhaustive list of injunctive relief. Injunctions may include, for example, freezing monetary assets, securities, rights to real estate and moveable assets of the respondent (for further details see Prejudgment attachments and freezing orders) or prohibiting the respondent or other persons from committing certain actions concerning the subject of the dispute.

An application for injunctive relief may be submitted simultaneously with the statement of claim or in the course of proceedings before the judgment is rendered by the court.

Upon an application by the claimant, a state commercial court may grant injunctive relief sought by the applicant. The court will consider an application no later than the next day after the submission of the application to the court. There is no requirement that the application should be signed by an attorney (advocate).

The court may grant an injunction in circumstances where it finds it appropriate, relevant to the dispute, and necessary to ensure the status quo. An injunction is granted ex parte. The respondent may challenge an injunction within a month from the date of the court ruling granting injunction. Representation by an attorney in interim relief proceedings is not mandatory. However, legislative amendments expected to enter into force by 1 October 2019, will require representatives to have a higher legal education or a degree in law (with some exceptions outlined in the legislation).   

In practice, state commercial courts are reluctant to grant injunctive relief.

Last modified 19 Jul 2019

Saudi Arabia

Saudi Arabia

In Saudi Arabia, interim relief proceedings are referred to as "summary cases", and the requests made under such proceedings are referred to as "summary requests". The court with jurisdiction over the subject matter of the main dispute has jurisdiction to grant interim measures in respect of urgent matters related to the main dispute, where the lapse of time may cause an irreparable harm. Types of interim measures include (as stated under Article 206 of the Civil Procedures Law):

  • "cases of inspection to establish a condition" (these are cases where the judge is required to inspect the condition of an asset so, for example, a judge may visit and inspect a property to provide an official monetary valuation of the real estate at that particular time);
  • cases of an injunction banning travel;
  • cases of an injunction banning interference with possession and recovery of possession;
  • cases of suspension of new actions;
  • cases requesting receivership;
  • cases relating to daily wages; and
  • other cases deemed urgent by law.

By law, if a summary request is sought before the main action has been commenced, a judgment on these urgent matters should always be followed by a claim on the merits. In practice, the claimant usually files the main case and then subsequently files the request for a judgment on urgent related matters. The hearing for a summary request shall be within 24 hours from submitting the request, however in practice it may take longer. The law does not specify a maximum period through which a decision on the summary request should be issued.

The party can appeal the interim relief judgment within 10 days of the notification of the judgement to the parties.

As in ordinary proceedings before the Saudi courts, representation by an attorney in these urgent related matters is not mandatory. Every individual has the right to defend themselves without the need to appoint an attorney or legal representative.

The claimant is required to provide a financial guarantee to the court in case the claim proves to be incorrect. The amount for any guarantee is subject to the judge's discretion.

Last modified 19 Jul 2019

Spain

Spain

In Spain, interim relief proceedings can be brought where such relief is necessary to ensure enforcement of a future judgment.

The interim measures that can be granted primarily include:

  • injunctions (i.e. an order requiring a party to do or not to do something);
  • preventive freezing orders;
  • ·interventions or court-ordered receiverships of productive assets;
  • ·deposits of moveable assets;
  • preparing inventories of assets in accordance with conditions to be specified by the court;
  • precautionary registry entries of the claim in the Public Registry;
  • court orders to provisionally cease an activity; and
  • suspensions of contested corporate resolutions.

There is no informal way to obtain interim relief. An application must be filed in writing before the court with jurisdiction to deal with the main claim.

In order to be successful, an applicant seeking the interim relief must satisfy each of the following requirements:

  • provide the particulars, arguments and documentary evidence allowing the court to justify, without prejudging the merits of the case, a provisional and circumstantial judgment in favor of the applicant’s claim (appearance of good a good claim or fumus boni iuris);
  • prove that, if the requested measures are not adopted before the judgment is issued, there is a real risk that any judgment in favor of the applicant would be defeated or prejudiced (risk in procedural delay or periculum in mora); and
  • offer security to the court in order to compensate the respondent and related third parties (in a speedy and effective manner) for loss if it is found that the freezing order was wrongly granted.

It is difficult to estimate the timeframe for interim relief proceedings. Non-urgent interim relief proceedings can range between one to six months, but in urgent ex parte proceedings, interim relief can be granted in a matter of days (depending on the courts’ workload).

Interim relief orders are usually granted by first instance courts. Appeals against such orders are resolved by Provincial Courts in a timeframe ranging between 6 and 18 months.

Last modified 19 Jul 2019

Sweden

Sweden

The Swedish judicial procedure provides tools to obtain interim relief. The (prospective) claimant may request interim relief during or prior to the initiation of substantive proceedings. The type of relief that may be granted will depend on the measures that are required to secure the claimant’s interests until the case is decided. The most common types of interim relief are attachment or freezing of assets (for further detail see Prejudgment attachments and freezing orders) or prohibition to perform certain actions i.e. breach a non-compete clause.

Prerequisites for obtaining interim relief are:

  • that the claimant can show that the claims have reasonable merit;
  • that the relief sought would be in jeopardy unless the measure is granted; and
  • that the claimant can provide sufficient collateral for the possible damage caused by the interim relief.

If the court is satisfied that the prerequisites are met, the relief can be granted before the defendant has been served. If the relief sought is granted, the claimant must initiate the proceedings or arbitration within one month.

A claim for interim relief may be granted within a day, and no later than within a week of filing the application for interim relief. The defendant may appeal against an interim relief judgment within three weeks. As in almost all Swedish court proceedings, representation by an attorney is not mandatory.

Last modified 19 Jul 2019

Thailand

Thailand

Interim orders may be granted by the court. These orders include: restraining orders, possessory orders and orders requiring government agencies to suspend or revoke administrative decisions. Search orders are not available for civil proceedings.

A party may file an application for interim relief before, during or after the judgment (pending execution).

A party may also file for emergency relief which is considered on an ex parte basis. If accepted, the court will consider and determine the application on the same day. The Thai courts impose a high threshold to obtain an emergency injunction. An applicant will need to prove the following:

  • an imminent threat of serious harm;
  • the likelihood of success of challenging the merits of the claim, against which the emergency application is being sought; and
  • that the respondent has no or limited assets in Thailand against which the applicant may seek to eventually enforce a judgment, once the case is concluded.

The respondent may file an appeal against an emergency injunction at the Court of First Instance within 30 days from when the injunction was first granted.

It is not mandatory for parties to seek legal representation in interim relief proceedings. In practice, however, it is very common for legal counsel to be instructed.

Last modified 19 Jul 2019

UK - England & Wales UK - England & Wales

UK - England & Wales

A range of interim remedies is available to parties to legal proceedings. Interim remedies are provisional measures generally granted with a view to preserving the status quo, or preventing the dissipation of assets. Common applications for interim remedies include: interim declarations; interim injunctions (injunctions are orders prohibiting a person from doing something or requiring a person to do something); orders for the detention, custody, preservation, inspection, sampling of relevant property; sale of relevant property which is of perishable nature or which for any other good reason it is desirable to sell quickly; freezing injunctions; search orders; orders to provide information about assets; injunctions restraining foreign legal proceedings; applications for security for costs; applications for orders for interim payment on account of any damages, debt or other sum the court may hold the defendant liable to pay; applications for further information; extensions of time; and specific disclosure. 

An order for an interim remedy may be made at any time, including (i) before proceedings are started; and (ii) after judgment has been given. However, the court may only grant an interim remedy before proceedings are started if the matter is urgent or it is otherwise desirable to do so in the interests of justice. If the court grants an interim remedy before a claim has been started, the court should give directions requiring a claim to be commenced.

As a general rule, no order should be made in civil proceedings without notice to the other side unless there are good reasons for departing from the general rule that notice must be given. An application for interim relief must be supported by evidence, unless the court orders otherwise. In ex parte (i.e. without notice) applications, relief can generally be obtained within a matter of days. However, it is possible to obtain an interim order (including an interim injunction) at a few hours’ notice if the urgency of the matter justifies it. If the court grants the ex parte application, the defendant is provided with an opportunity to object to the granting of relief at a subsequent hearing (referred to as the return date). At this hearing, the defendant would seek to persuade the court that any order made should not be continued. 

The criteria for obtaining relief varies depending on the type of relief sought but the overarching principles the court will consider when it comes to interim injunctions, for example, include: 

  • whether there is a serious issue to be tried.  The evidence must show that the applicant has a real prospect of succeeding in its claim and, if so:
    • whether, if the applicant were to be successful at trial, damages would be an adequate remedy;
    • whether, if the respondent were to be successful at trial, damages under a cross-undertaking to pay damages by the applicant in return for an interim injunction would be an adequate remedy; and
  • if there is a question as to the adequacy of damages to either or both parties, whether it would be just and reasonable to grant the relief sought. 

The parties can appeal the court’s decision on the application for interim relief to a higher court. The appellant will usually need to seek permission within 21 days of the date of the initial decision.  Where the lower court refuses the application for permission to appeal, a further application may be made to the appeal court. Such application must be filed within seven days after service of the notice from the lower court that permission to appeal has been refused. Either way, permission will only be granted where the appeal has a real prospect of success, or where there is some other compelling reason why the appeal should be heard. 

Again, legal representation is not mandatory, although as applications for interim relief can be relatively complex, it is ordinarily the case that both parties are legally represented.

Last modified 19 Jul 2019

UK - Scotland

UK - Scotland

In Scotland, interim relief proceedings are subject to statutory and court rules. The relevant court procedure depends on the type of relief sought and the court in which the application is made. Both the Court of Session and the sheriff court may grant interim relief.

In Scotland, there are four broad categories of interim relief available:

  • measures to preserve evidence (for further details on preservation of documents, see Disclosure and discovery);
  • measures to secure assets in relation to money claims (for further details see Prejudgment attachments and freezing orders);
  • preservation of assets in the event of insolvency; and
  • measures to protect a party’s right against a wrongdoing (also referred to as interim interdict).

Preservation of assets in the event of insolvency

An ex parte (i.e. without notice) application may be made as part of insolvency proceedings for an interim order to appoint an insolvency practitioner to preserve assets pending a formal appointment being concluded. This measure is only available where there is a risk that those in control of the company or organization concerned may dissipate assets if they are given advance notice of the insolvency proceedings. The procedural requirements vary depending on the insolvency process being pursued and the court in which the application is being made.

Interim interdict

An interim interdict is a court order requiring a person not to do something pending the resolution of a claim for interdict. It is the equivalent of an interim injunction in England.

The party seeking an interim interdict must demonstrate to the court that there is a prima facie case and that “the balance of convenience” favors the granting of the order. The order can be sought and obtained on an urgent basis by making an application to the court. If an order is sought urgently, these can usually be heard by the court within 24 hours.  It can also be granted without notice.

However, if the defender to an interim interdict application has lodged a caveat at court (effectively an early warning device) the court will require that the defender be made aware of the application and be given a right to be heard by the court before the order is granted.

If the order is granted ex parte, then the defender may apply at any time to have the order recalled (withdrawn).  If the order is granted with both parties in attendance at the hearing, the defender must show a material change in circumstances to have the order recalled.  If the defender wishes to appeal, on the facts or the law, then the timeframe is within 14 days of the decision.

It is not necessary for a party to be represented by a solicitor at interim relief proceedings, but given the legal arguments necessary, legal representation is normal. Individuals can represent themselves and companies and other business vehicles can apply for permission to be represented by a lay representative (such as a director).

Last modified 19 Jul 2019

United Arab Emirates

United Arab Emirates

Interim relief proceedings are proceedings that relate to a party seeking orders for interim / provisional relief. Such orders are usually granted at an early stage in the proceedings, or before the merits of a dispute are examined. These are distinguished from final remedies which ordinarily form part of the final judgments or orders that dispose of a dispute. There are a wide range of these orders and they usually act to maintain the status quo between the parties. Such orders or remedies can also be stand-alone in their nature; for example, an anti-suit injunction which prevents or restricts a party’s ability to commence or continue legal proceedings in a particular forum.

The ability to grant and apply for interim remedies is enshrined in the court laws and procedural rules of each of the DIFC and ADGM. At the date of writing, there have been no reported interim applications or orders in the ADGM courts. The DIFC courts, on the other hand, have either granted or heard applications for various interim remedies, including:

Applications for interim relief are made to the DIFC court and/or ADGM Court of First Instance either on an ex parte basis (i.e. where the respondent is not present at the first hearing) or with notice. In circumstances where the application is made on an ex-parte basis, the applicant is under a duty of full and frank disclosure which in turn requires it to disclose all relevant material to the court, including material which may be adverse to its case.

Before entertaining any substantive application for interim relief, the party seeking an interim remedy from either the DIFC or ADGM courts will first need to establish that the relevant court has jurisdiction under its relevant jurisdictional laws. When deciding the substantive application, DIFC court case law illustrates that the approach in deciding the substantive elements of the application generally follows the principles for granting equitable relief in English law. The applicable tests differ depending on the relief sought. However, those elements include:

  • whether there is a serious question to be tried;
  • whether damages would be an adequate remedy; and
  • the balance of convenience between the parties.

Orders for interim relief issued by the DIFC and / or the ADGM court are not appealable, although a party may apply to have the relevant order varied or set aside. The procedure and basis for doing so will depend on the basis on which the particular order was issued.

Given that the DIFC and ADGM are fairly young jurisdictions, it is difficult to accurately estimate the timeframe by which orders for interim relief could be obtained once applied for.

Legal representation for such applications is not mandatory. However, it is strongly recommended that legal advice is sought in respect of any application for interim relief due to the complexity of the legal issues relating to such applications.

Last modified 19 Jul 2019

United States

United States

State and federal courts have wide discretion to grant interim relief in the form of injunctive orders. These orders may require a party to do, or refrain from doing, a particular act. Injunctive orders are equitable in nature, and such relief therefore does not typically include an order requiring the payment of money. It is not possible, for instance, to obtain an interim money judgment against a defendant. Interim injunctive orders take one of two forms:

  • temporary restraining orders, which are usually reserved for emergency situations, may be issued on an ex parte basis in as little as a few hours but expire after a limited period of time (usually 14 days); and
  • preliminary injunctions, which are typically sought in non-emergency situations, remain in place for the duration of the litigation and require notice and a hearing with the opposing party. Individuals may be represented by an attorney or elect to represent themselves in these proceedings. Corporate parties must typically be represented by an attorney.

To obtain an interim injunctive relief, a party must file a motion accompanied by evidence (e.g. affidavits, documents, etc.) establishing that the party is entitled to relief. The court may also order a hearing at which testimony on the motion will be presented. A party applying for interim injunctive relief must generally prove that:

  • the party is likely to succeed on the merits of its case;
  • an award of money damages would not be sufficient to cure the alleged injury;
  • on balance, equity favors the issuance of the injunction; and
  • the public interest favors the injunction.

Permanent injunctive relief may also be awarded as part of a judgment on the merits. To obtain a permanent injunction, a party must prove that it is entitled to relief based on the four factors listed above.

In federal court and in some states, an immediate appeal is permitted from an order granting or denying injunctive relief. The timeframes for such appeals are similar to those described in Appeals, though a party may request expedited consideration if an issue is time-sensitive.

Last modified 19 Jul 2019

Australia’s courts operate under the common law legal system. Australia has a federal system of government, with legislative power divided between the federal branch of government and six state and two territory governments (for ease, we refer collectively to the states and territories as the state or states). Australia’s courts are similarly divided into eight separate state jurisdictions and a federal jurisdiction, which each operate on a parallel but independent hierarchy of courts. State and federal courts broadly have jurisdiction over the application of legislation enacted by the state and federal parliaments respectively. The High Court of Australia is the ultimate court of appeal in Australia for all court systems. There are also tribunals created by specific legislation under state and federal jurisdictions.

In each state or territory of Australia, specific legislation imposes a time period before the end of which proceedings must be commenced for a claim or dispute. 

The specific legislation is: 

  • Limitation Act 1985 (ACT)
  • Limitation Act 1981 (NT)
  • Limitation Act 1969 (NSW)
  • Limitation of Actions Act 1974 (QLD)
  • Limitation of Actions Act 1936 (SA)
  • Limitation Act 1974 (TAS)
  • Limitation of Actions Act 1958 (VIC)
  • Limitation Act 2005 (WA) 

These time periods vary from state to state and depend upon the type of claim. A failure to issue proceedings before the relevant time period expires is likely to result in that claim becoming time barred. 

In most Australian states, actions in simple contract or tort must be brought within six years of either the date of breach (contract) or the date on which loss was incurred (tort). 

The limitation period may be extended in some circumstances, for example where someone with legal incapacity (such as a minor or a person of unsound mind) has entered into a contract. Some jurisdictions also permit for the limitation period to be extended at the court’s discretion.

The process of litigation is broadly similar across Australian courts. Proceedings are initiated by a claim or application, which must be filed in the relevant court and served on all parties to the proceeding. Parties will then exchange pleadings (such as statements of claim, defenses, counterclaims, and replies) which define the parameters of the dispute between the parties and the specific issues which are to be proved by each party. Timeframes for the progression of litigation are found in the civil procedure rules applicable in each jurisdiction. Generally, a defense must be filed within 28 days of service of a statement of claim. 

For proceedings in the Federal Court, parties are required to file a genuine steps statement, which outlines the steps taken to make a sincere and genuine attempt to resolve the dispute prior to commencing litigation. Superior courts in the states may also require a party to litigation to provide details of attempts made to resolve a dispute before proceedings were commenced.  

Once the exchange of pleadings is complete, parties will generally undertake the discovery (also known as the disclosure) process, and then go on to prepare their evidence for a final hearing of the dispute. It is common, particularly in complex litigation, for the parties to be obliged to attend court at regular intervals for directions hearings, in which orders are given to manage the conduct and timeframes of the case up until its final hearing. 

Timeframes for each stage of proceedings vary greatly with the complexity and case management style of an individual matter and the specific jurisdiction in which the case is commenced. Each superior court in the states has in place specific practice notes or directions for the conduct of commercial disputes with the aim of ensuring that those commercial disputes are resolved in the most cost-effective and time-efficient manner possible. Generally, across all jurisdictions, parties will have 28 days from receipt of a claim to put on a defense. As noted above, the timetable from that point of time will depend on the nature of the dispute.  

A straightforward commercial contract dispute will normally, court resources permitting, be resolved within 12 months. 

Most state and federal courts require a corporate entity to be represented by a lawyer (which could include a lawyer employed by a company). Some jurisdictions dealing with small claims / employment issues may allow a company to appear by its director. Individuals may appear on their own behalf in most jurisdictions without a lawyer.

In Australia, the discovery process is designed to allow parties to civil litigation to obtain from an opponent all documents relevant to the issues in dispute. Australian courts strictly prohibit “fishing expeditions” through discovery. Discovery is usually undertaken after the close of pleadings (although in some courts in some states this may not be permitted until after evidence is complete) when the points of dispute between the parties have crystallized. Discovery may however be ordered, in limited circumstances, prior to the commencement of proceedings where an applicant is able to satisfy the court that he or she needs to obtain discovery in order to find out whether or not a cause of action exists against a potential defendant.  

The practice of disclosure varies between those jurisdictions which mandate a general right of discovery and those in which the right is more limited. In the Northern Territory and the states of South Australia and Queensland, parties have a mandatory duty of disclosure which is discharged by the exchange of lists or copies of discoverable documents. In Tasmania, Victoria and Western Australia, a party may, by written notice to another party, require that party to make general discovery. In the Federal Court of Australia and New South Wales, the right to discovery is limited and requires an order of the court and will usually be limited to specific categories.  

There have been recent attempts by some of the states’ superior courts to more tightly control the disclosure process. For example, the preparation of disclosure plans (which identify the categories of documents to be disclosed and how they will be disclosed), and the courts ordering that discovery being provided after the exchange of written evidence with a view to limiting the number of documents to be exchanged. 

In the Federal Court and most state courts, discovery can be ordered to be made by non-parties to the dispute where the court is satisfied as to the likelihood of the non-party having relevant documents. Courts in Australia will also generally permit the issuing of subpoenas to produce documents to non-parties to litigation and this process will be more straightforward than seeking non-party disclosure orders. 

Default judgment can be applied for in proceedings in any court where a defendant does not:

  • file a defense within the specified timeframe after a statement of claim has been served; or
  • fails to make an appearance at a hearing.

Once a default judgment is ordered against a defendant, a defendant can, in limited circumstances, seek to challenge the granting of judgment by default. The defendant will need to file an application or motion to set aside the default judgment within a specified period of time and show cause for why (usually lack of notice of the claim or that notice was given of intent to defend but that notice was not brought to the attention of the court which granted the default judgment) the judgment should be set aside.

Judgments of civil courts in Australia can be appealed to a superior court. Civil procedure legislation in each jurisdiction sets out the rules and procedure for appeals. Ordinarily, it will be necessary to seek leave from the superior court to appeal. The Court of Appeal in each state, and the Full Federal Court, are the ultimate courts of appeal for each of those jurisdictions. Cases that emanate from the Federal Circuit Court are appealable to the Federal Court and then the Full Federal Court, whereas matters emanating from a State Magistrates Court are appealable to the Supreme Court and the Court of Appeal. Decisions made by the District Court (County Court in certain states) are appealable to the Supreme Court and decisions of the Supreme Court can be appealed to the state’s Court of Appeal. The High Court of Australia hears appeals from courts of appeal (sometimes referred to as the full court) in all jurisdictions, and has limited original jurisdiction (which predominantly relates to constitutional matters). 

Parties generally, depending on the jurisdiction, have 28 days from the date of judgment or final order, to lodge an appeal in a civil matter to the relevant appeal court. Appeals will generally, because of the limitation of introducing new evidence in most civil appeals, be resolved more quickly than matters at first instance. Most appeals of civil matters will be heard and judgment given within six to eight months from commencement of the appeal. 

All superior Australian courts have a wide power and discretion to grant both interlocutory orders and interlocutory injunctions. An interlocutory application, generally speaking, is an application which seeks any order other than a final judgment. 

As in other jurisdictions, interlocutory injunctions are a species of interlocutory orders. Where those orders are sought on an urgent and temporary basis until a more extended form of relief is sought, they are often referred to as interim orders. 

Interlocutory orders (including interlocutory injunctions) can require a party to undertake or refrain from a particular act, and can be granted before proceedings have commenced, once they are on foot and after judgment has been entered. Applications for these types of orders may be made by self-represented litigants or through legal representation. 

The categories of non-urgent interlocutory orders that an applicant may seek are many and varied and include, by way of example, applications for security for costs, discovery (including preliminary discovery before proceedings have been commenced), the filing of expert evidence or orders for particulars, The evidence required to obtain non-urgent interlocutory orders will turn on the type of orders sought, although at the very least substantive interlocutory applications usually require a sworn affidavit to be filed. 

The kinds of relief that can be sought by way of an urgent interlocutory injunction are equally varied. This is because the orders have the purpose of preserving the status quo until the rights of the parties can be determined finally, and the types of matters that can be heard by the court are vast. Common urgent interlocutory injunctions include applications for the preservation of property, the freezing of assets and applications to search premises to preserve evidence.

An applicant for an interlocutory injunction (either urgent or not) must prove that: 

  • there is a serious question of law to be tried;
  • the balance of convenience favors the granting of the injunction; and
  • an award of damages (at the conclusion of the proceeding) would not be an adequate remedy. 

It is possible for urgent interlocutory injunction applications to be heard by the court ex parte, without the opposing party’s involvement. Any orders given ex parte will generally operate only for a limited period of time until the matter can be brought to a hearing. The duration of any ex parte order will ordinarily be limited to a period terminating on the return date of the summons, which should be as early as practicable (usually not more than a day or two) after the order was made, when the respondent will have the opportunity to be heard. For this reason appeals of ex parte interlocutory injunctions are not usually made to a superior court. The applicant will then bear the onus of satisfying the court that the order should be continued or renewed. A party seeking an interlocutory injunction will ordinarily be obliged to give an undertaking to pay any damages by the defendant suffered as a result of the injunction in the event that the claim for final relief at trial fails. 

The decision to grant an interlocutory injunction can be appealed on an urgent basis to a relevant appeal court. The appeal court will usually list the matter before a single judge to assess the urgency (often the same or the day following the day on which the appeal is lodged) and set a timetable based on the information provided at that first listing. 

Australian state and federal courts can grant interim freezing orders, which restrain a defendant from disposing of property prior to judgment. These orders are a species of interlocutory orders. Such applications may be filed at the Supreme Court or Federal Court. A freezing order is normally obtained ex parte without notice to the respondent, before service of the originating process, because notice or service may prompt the feared dissipation or dealing with assets. A freezing order or an ancillary order may be limited to assets in Australia or in a defined part of Australia, or may extend to assets anywhere in the world, and may cover all assets without limitation, assets of a particular class, or specific assets. It would therefore be possible for a freezing order to encompass bank accounts as well as assets such as real property, art, securities or motor vehicles. Such orders would, however, normally allow for access to funds for reasonable expenses, living costs and payments in the ordinary course of a defendant or third party’s business. A court may also order a freezing order against a third party, where it can be established that there is a risk that a judgment or prospective judgment may be unsatisfied as a result of a third party’s power, possession or influence over the assets in question. The power to issue a freezing order is a function of courts’ authority to prevent an abuse of the court process by the frustration of court-ordered remedies. A freezing order will be made only to preserve the status quo for the purpose of resolving a substantive cause of action brought by the plaintiff, and not as a stand-alone remedy.

The criteria for the issue of a freezing order is similar to the ordinary principles for the grant of interim relief, as discussed above, although the potentially serious impact on a defendant’s property rights raises the threshold for the granting of a freezing order. This may be overcome by an undertaking as to damages given by the applicant of the freezing order, where the applicant undertakes to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as it may direct) to any person affected by the operation of the order. The High Court of Australia described freezing orders as 'a drastic remedy which should not be granted lightly.' Broadly and generally, an applicant must show that: 

  • the applicant has a good arguable case (in the substantive cause of action);
  • the refusal of a freezing order will give rise to a real risk that any judgment pronounced in the action will remain unsatisfied, or that the recovery of any judgment will be prejudiced by reason of the removal by the defendant of assets from the jurisdiction, or their dissipation within it; and
  • the balance of convenience favors the making of the order.

Australian courts have wide discretion to award costs orders against either party to cover the opposing party’s costs of litigation. The general rule is that costs follow the event. This means that the unsuccessful party will be liable to pay the litigation costs of the successful party. The aim of this rule is to achieve a just outcome by shifting the costs burden on to the party which is found to have either unjustifiably brought another party before the court or given another party cause to have recourse to the court to obtain their rights. 

Where each litigant has enjoyed some success in the proceedings, courts may modify the general rule to make costs orders that reflect the litigants’ relative success and failure. Courts may depart from the general rule by requiring a successful party to bear their own costs where there is good cause to do so. Such an outcome may be justified where, for example, a successful plaintiff is awarded only nominal damages, or a party succeeds only due to late and substantial amendments to their case. 

Of particular strategic importance is the rule that generally a court will not award costs to a successful party which has obtained relief no more favorable than had already been offered by his or her opponent in settlement discussions. This rule is designed to encourage the early resolution of litigated disputes. 

Costs orders are subject to a costs assessment process administered by the courts. It is unusual that a party will be able to recover all of its actual legal costs through this process. On a standard assessment, parties may recover approximately 60% to 75% of their actual costs. A higher rate of assessment, on an indemnity basis, may be employed where a party has engaged in unreasonable conduct in the proceeding. 

All courts in Australia will charge fees for commencing civil proceedings (often referred to as a filing fee). Some jurisdictions, particularly superior courts, will also charge additional fees including but not limited to daily hearing fees (calculated by reference to the length of the trial), filing fees for notices of motions/applications and the issuing of subpoenas to third parties. These fees are set by the courts and are published on their websites. They are usually reviewed on a yearly basis. By way of example, the current (2019) rate for commencing proceedings in the Federal Court of Australia is AUD4,045 for corporations and the hearing fee for a five-day trial is AUD19,730 for corporations.

In all Australian jurisdictions, a representative proceeding, or class action (as it is more commonly known in Australia) may be commenced by or against any one person as a representative of numerous persons (the minimum number required is generally seven people) who have the same interest in the proceeding and the claims brought give rise to a substantial common issue of law or fact. It is possible to commence a class action against multiple defendants and there is no requirement for every group member to have a claim against every defendant.  

An overarching consideration of the courts in hearing a representative proceeding is whether it involves less delay, expense, and prejudice to the parties than alternative forms of trial. If not, the court may discontinue the proceedings. 

The Federal, New South Wales, Victorian and, most recently, Queensland jurisdictions contain further statutory provisions in relation to representative proceedings, which are arguably more liberal and plaintiff-friendly than other jurisdictions. These jurisdictions allow representative proceedings to be brought where seven or more people have claims which arise out of the same or related circumstances and give rise to a substantial common issue of fact or law. Over 90% of all class actions filed in Australia from 1992-2009 were filed in the Federal Court of Australia. 

When a representative proceeding is commenced, all potential plaintiffs who fall within a class become members of the class, whether they are aware of the claim or not. Members can then opt out of the proceedings before a date set by the court. All class members who do not opt out will be bound by the judgment of the court or by any approved settlement. 

It is important to note that, although some states have yet to formally abolish the law of champerty and maintenance, outside of the US, Australia has one of the most developed class action industries, with a variety of large, class action plaintiff law firms and with many litigation funders having been active in the jurisdiction for over 20 years. This active funding industry has seen a continued increase in the number of class actions being commenced in Australia. 

Cameron Maclean

Cameron Maclean

Partner
DLA Piper Australia
[email protected]
T +61 8 6467 6013
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