Injunction
Introduction
An interim injunction is a court order granting interim legal protection in urgent cases. The preliminary injunction procedure is the judicial procedure conducted to obtain such an injunction. It is an expedited procedure designed to protect rights and prevent damages before a final decision is made in a main proceeding.
Purpose of the preliminary injunction
The main purpose of an interim injunction is to make a provisional arrangement to prevent irreparable damage from being caused by waiting for the outcome of the main proceedings. It can be used, for example, to secure a party’s assets, preserve evidence, or stop certain actions.
Types of injunctions
There are several types of restraining orders, including:
- Performance order: Here, the sued party is obliged to perform a certain act, e.g. the surrender of documents.
- Injunction: Here, the sued party is prohibited from taking a certain action, e.g. disseminating certain information.
- Security order: Serves to secure assets or evidence for the main proceedings.
Procedure of the preliminary injunction proceedings
1. application
The applicant must file a written application for a temporary restraining order with the competent court. This request must state the reasons for the urgency and the rights to be secured.
2. examination of the requirements
The court shall examine whether the statutory requirements for the issuance of an interim injunction have been met. This includes in particular the existence of a claim for injunction and a reason for injunction (urgency).
3. hearing of the parties
As a rule, an oral hearing is scheduled at which both parties are heard. In particularly urgent cases, however, the court may decide without hearing the other party (“ex parte”).
4. issuance of the order
If the court finds the request to be well-founded, it issues the temporary restraining order. This will be delivered to the other party.
5. enforcement
The applicant may have the temporary restraining order enforced if the other party does not voluntarily comply. As a rule, an enforcement order is required for this.
6. opposition and review
The opposing party may file an appeal against the preliminary injunction. In this case, the proceedings will continue and a new judicial review may occur. The court may then uphold, modify, or vacate the temporary restraining order.
7. main procedure
The temporary injunction serves the purpose of provisional settlement. The main proceedings, in which a final decision is made on the underlying legal dispute, usually follow the preliminary injunction proceedings. The preliminary injunction may have an influence on the main proceedings, but the main proceedings may also lead to a different decision.
Special features and risks
It is important to note that preliminary injunction proceedings are expedited proceedings that are often conducted without full fact-finding due to their urgency. This may result in a provisional decision that does not necessarily correspond to the outcome of the main proceedings.
In addition, the applicant bears the risk of being liable for damages incurred by the other party as a result of the preliminary injunction if it later transpires that the injunction was wrongly issued.
Conclusion
The preliminary injunction procedure is an important instrument of legal protection used in urgent cases to make provisional arrangements. It requires careful consideration and sound legal judgment, as it presents both opportunities and risks.
