An important amendment of the Civil Procedure Code (Law No. 99/1963 Coll., civil procedure code) will become effective as of April 1, 2005. This amendment introduces major changes namely with respect to preliminary injunctions (Section 74 et seq.) and with respect to provisions relating to proceedings before a court of appeal (Section 211 et seq.). The amendment changed Section 75 para 4 in that it explicitly lays down the duty of the plaintiff to file the documents it invokes along with the request.
According to this provision the plaintiff must deposit a security in the amount of CZK 50.000,- and in commercial matters CZK 100.000,- at the latest on the same day on which it filed the request for the issuance of a preliminary injunction with the court. This security serves for the purpose of securing compensation of damage or another harm that would be caused by the preliminary injunction. If the security is not deposited the presiding judge shall refuse the request for preliminary injunction (Section 75 para 2). Anyone who has suffered damage or harm due to the issued preliminary injunction that has lapsed or has been cancelled because of a different reason than that the claim regarding the motion on the merits has been satisfied or the plaintiff´s right has been satisfied (Section 77a para 1) is entitled to the compensation of damage or of another harm. The said claim shall be asserted through an action for compensation of damage or another harm that shall be filed at the latest within six months from the day when the preliminary injunction lapsed or was cancelled upon a final judgment, otherwise the right will lapse. After lapsing this deadline may not be restored (Section 77a para 2). This is another important amendment compared to the existing provisions according to which the limitation of actions, respectively the lapsing of the claim for the compensation of harm caused by a preliminary injunction were governed by the general provisions of civil, respectively commercial code on the limitation of actions.
The security does not need to be deposited in case of requests for issuance of preliminary injunctions pursuant to Section 76a (securing care of minors), in proceedings, which can be initiated ex officio, in alimony matters, in employment matters, in matters relating to compensation of health damage and in cases where the plaintiff proves that the requirements for the exemption from court fees have been met. Problems with the application of the last exemption from the duty to pay the security, stated under Section 75b para 3 letter g) will have to be overcome by practice of the courts: The security shall not be deposited if there is a danger in delay in the consequence of which a damage may be suffered by the plaintiff and the plaintiff files documents proving that it could have not deposited the security without its fault along with the request for preliminary injunction. The burden of proof in this case lies exclusively on the plaintiff and only the practice of the courts will show what requirements the plaintiff must meet so that this generally phrased provision may be applied to him.
The deposited security shall be returned to the plaintiff in case that the request for preliminary injunction is dismissed, rejected by a final decision of the first court or if the proceedings on this request have been terminated upon final judgment.
Now, a chairman of a senate can immediately announce a preliminary injunction, which it has ruled on without a delay, to a party to the proceedings, to which a duty is imposed on, optionally also to someone different from a party to the proceedings, if a duty has been imposed on it by a preliminary injunction. If needed, a chairman of a senate may announce a decision in situ. A copy of a decision on preliminary injunction shall be sent to the parties to the proceedings and to those, upon whom a duty has been imposed by a preliminary injunction, within three days from the date of the announcement, respectively from its issuance, if it is not announced.
A decision on preliminary injunction is enforceable as of its announcement. If its announcement did not take place, it is enforceable as of its issuance or as of its delivery to a person, upon whom a duty is imposed (Section 76c).
Newly it will be possible to claim the inefficiency of a legal act, which has been done by a person, upon whom the statement of an enforceable decision on a preliminary injunction is binding, if by such act a duty imposed by a preliminary injunction was breached. It is important especially in cases of preliminary injunctions imposing upon a party to the proceedings to refrain from disposing with a particular real estate: then in such a case a motion for entry to the land register relating to this real estate, on which it has not been effectively decided so far, is without any legal effects. It also concerns the situation, when an act relating to a real estate was made before the decision on a preliminary injunction has become enforceable (Section 76e para 2).
If a motion for ordering a preliminary injunction were dismissed or refused or if the proceedings on a motion were terminated, the decision shall be delivered to the plaintiff only. A copy of the decision shall be sent within three days from the date of its announcement or its issuance (Section 76f). Newly such decision is not delivered to the defendant. Thus it will not realize that the plaintiff tried to prevent him from a certain action, respectively to force him to a certain action.
It is obvious from the above-mentioned that the amendment introduces some novelties to the proceedings on preliminary injunctions. The most important novelty for the clients is the necessity to give a deposit pursuant to Section 75b. This circumstance complicates a filing of a motion for ordering a preliminary injunction because before filing of such motion, respectively with its filing at the latest, it is necessary to transfer a statutory amount to the court’s account. It is undoubted that this change handicaps economically weaker business subjects, for which the amount of 100.000 CZK might be an obstacle, which will hinder to effective application of their rights in the form of a preliminary injunction. The practice will show, in which way the courts will allow the exceptions from the duty to give a deposit pursuant to the provision of Section 75b para 3.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.