Interim Injunctions: When Speed Makes the Difference

Sometimes a legal dispute simply cannot wait. A competitor leaking your trade secrets. A tenant who refuses to vacate. A contracting party threatening to cause irreparable harm. In such cases, interim injunction proceedings (kort geding) offer a solution: an expedited procedure before the preliminary relief judge that produces a ruling within weeks.

Interim injunction proceedings are one of the most powerful instruments in Dutch procedural law. But they are not a silver bullet. Not every case is suitable for interim relief, and the requirements imposed by the preliminary relief judge are strict. In this article, mr. Vulto explains when interim injunction proceedings are likely to succeed, how the procedure works and what costs you can expect.

Urgent Interest: The Threshold Requirement

The absolute prerequisite for interim injunction proceedings is an urgent interest. You must convince the preliminary relief judge that you cannot wait for regular proceedings on the merits, which can easily take a year or longer. The urgent interest may arise from the nature of the claim — think of imminent insolvency, reputational damage or the expiry of a deadline — or from the factual circumstances.

Note: the mere fact that you are in a hurry does not automatically constitute an urgent interest. If you have known about the problem for months but are only now taking action, the preliminary relief judge may rule that you have forfeited your urgent interest. Acting swiftly is therefore essential.

The Procedure: From Writ of Summons to Judgment

The procedure in interim injunction proceedings follows a number of steps. First, a writ of summons is drafted by your lawyer. This sets out the facts, the legal basis and the provisional remedy sought. The writ is served on the opposing party by a bailiff.

The preliminary relief judge then sets a hearing date, typically within two to four weeks. In highly urgent cases — for example where there is a threat of evidence being lost or immediate harm — the hearing may take place within just a few days. During the hearing, both parties are given the opportunity to present their arguments. The atmosphere is more informal than in proceedings on the merits: the preliminary relief judge actively asks questions and steers towards a practical solution.

The judgment typically follows within one to two weeks after the hearing. In urgent cases, the preliminary relief judge may deliver an oral judgment on the spot.

Types of Claims in Interim Injunction Proceedings

The preliminary relief judge may grant a wide range of provisional remedies. The most common are:

• Prohibition: The opposing party is prohibited from performing a particular act, such as publishing confidential information or continuing competing activities.
• Order: The opposing party is ordered to do something, such as performing a contractual obligation, providing documents or granting access to commercial premises.
• Provisional payment: In monetary claims, the preliminary relief judge may award an advance payment, provided the claim is sufficiently plausible and the risk of restitution has been assessed.
• Lifting of attachment: If a prejudgment attachment has been levied on your bank accounts or real estate, you may seek its lifting in interim proceedings if the attachment is unlawful or the underlying claim is unfounded.

Costs and Litigation Costs Orders

The costs of interim injunction proceedings consist of three components: court fees, bailiff costs and lawyer's fees. Court fees range from a few hundred euros for individuals to well over a thousand euros for legal entities, depending on the amount of the claim.

The losing party is in principle ordered to pay the litigation costs. However, please note: the costs order in interim proceedings is standardised. This means that as the winning party you will only recover a fraction of your actual lawyer's fees. In IP cases (intellectual property) there is an exception: full costs recovery may be claimed under Article 1019h of the Dutch Code of Civil Procedure.

Interim Injunction Proceedings Versus Main Proceedings

A frequently asked question is: what is the difference between interim injunction proceedings and main proceedings? The essential difference is that interim proceedings produce a provisional judgment. The preliminary relief judge makes an assessment of the likelihood that the court in the main proceedings will uphold the claim and grants a provisional measure on that basis.

In practice, however, the interim judgment often has a definitive character. Parties generally accept the ruling or subsequently reach a settlement. Commencing main proceedings after an interim judgment is costly and time-consuming. That is why it is all the more important to prepare the interim proceedings thoroughly: it is often your only chance.

Enforcement Disputes: When the Opposing Party Does Not Comply

A favourable judgment is worthless if the opposing party does not comply. Fortunately, procedural law provides instruments for this. An interim judgment is in principle provisionally enforceable, meaning it can be enforced immediately, even if the opposing party lodges an appeal.

If the opposing party nevertheless refuses to comply, a penalty payment (dwangsom) may be imposed for each day of non-compliance. In monetary claims, the bailiff can directly levy attachment on bank accounts or movable assets. If a dispute arises over the enforcement itself, enforcement proceedings (executiekort geding) offer a swift solution.