When a case needs an urgent decision

The procedure for provisional measures in summary proceedings (kort geding), a.k.a. preliminary relief proceedings or interlocutory proceedings, is an interim injunction procedure before the court. Such proceedings, under Dutch Caribbean law, are aimed at obtaining temporary instructions from the court, not at receiving a final decision in the case.

These proceedings are characterized by their more or less summary character and their relatively quick nature. There is a clear relationship to a procedure on the merits, which always may be instituted and sometimes even must be followed. Provisional measures that are prescribed in preliminary relief proceedings may be executed without delay.

Preliminary relief proceedings are also characterized by their mainly verbal nature. Parties are summoned for a verbal session, after which a judgment will follow in a relatively short period of time. Considering its character as a provisional measure, legal doctrine is of the opinion that is such proceedings courts may, in principle, only render condemnatory judgments, not declaratory ones; in its opinion only in specific cases may constitutive decisions be given.

Provisional measures may always be given in preliminary relief proceedings in civil cases if the claim meets the following three conditions: (i) there is an urgent interest at stake; (ii) the interests of both parties needs to be balanced; and (iii) the balancing of interests justifies a decision in preliminary relief proceedings.

The fact that the judge in preliminary relief proceedings is formally competent to render a decision, does not imply that he will accept the claim or will decide in favor of it. The nature of preliminary relief proceedings implies that the case not only needs an urgent decision, but that its nature is also such that it may be dealt with summarily.

The judge has a wide latitude in deciding on the necessity of allowing a proceeding in preliminary relief proceedings. It is within his competence to decide whether a case requires an urgent decision and is therefore suited to be dealt with in preliminary relief proceeding. The condition of urgency implies the question of whether waiting for a judgment in a procedure on the merits may cause great or irreparable damage.

In general the court will take into account the detriment which the plaintiff in preliminary relief proceedings will suffer if he has to wait too long for a judgment in a procedure on the merits.

In preliminary relief proceedings the judge needs to balance the interests of the plaintiff and the defendant. In practice, this balancing of interests plays an important role in the procedure. The judge may dismiss a claim in preliminary relief proceedings if the consequences for the defendant would be too drastic. An important factor will be the probability of a positive or negative decision on the merits. If the plaintiff is unable to sufficiently prove his claim or the case itself is a complicated one in which the demonstration of proof is necessary, the judge will, as a rule, refuse to reach a decision in preliminary relief proceedings.

A judge is not bound to apply the ordinary rules of evidence. The court, e.g., is not obligated to permit a party to prove the facts relevant to the dispute. The parties will therefore have to explain their opinion by way of documents submitted with their statements. Although, a judge is free to apply the ordinary rules of proof, this is seldom done since doing so would contradict the speedy character of preliminary relief proceedings.

As far as the form and the content of a decision in preliminary relief proceedings is concerned, the judge has great latitude in reaching a decision. A guiding principle for the judge will always be a policy of not going beyond what might be necessary or well-balanced as far as the decision in the procedure on the merits is concerned. In principle, however, the judge may order any measure provided that the measure serves to safeguard a right or a legally recognized interest.

Preliminary relief proceedings do not have to be followed with a claim in normal proceedings; the provisional measure will be valid and enforceable with or without initiating such proceedings, unless the Court stipulates that the plaintiff, in order to be allowed to enforce the judgment in these preliminary relief proceedings, must file a petition in regular proceedings within a certain period of time.

Legal literature is of the opinion that in preliminary relief proceedings only condemnatory judgments should be allowed, since these judgments can be executed in all cases. It is generally accepted that a merely declaratory judgment – in which execution is not threatened – should not be delivered in preliminary relief proceedings; in a few cases, however, judges have not hesitated in reaching such decisions. Constitutive judgments, like a judgment to avoid a contract or to nullify a will, are considered incompatible with preliminary relief proceedings. The judge may not alter a legal relationship between parties in a definitive way. He may, however, decide to suspend the rights and duties derived from the legal relationship of the parties or order the lifting of an attachment.

Karel Frielink
(Attorney/Lawyer, Partner)

(11 March 2016)


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