In a judgment dated January 26 1999, the French Supreme Court ('Cour de cassation') reiterated that certain interim or interlocutory measures can only be requested ex parte if the situation demands that these measures should not be taken after due hearing of the parties (Cass. Com. January 26 1999).
Under articles 812 and 857 of the New Code of Civil Procedure, applications for urgent interim or interlocutory remedies may be presented ex parte, where circumstances so require. The legal basis for such remedies is the following:
- If, prior to the institution of any proceedings, there is a legitimate cause for the conservation or the establishment of any facts that the resolution of the matter might depend upon, any interested party may seek legally admissible investigative measures, whether ex parte or after notice has been given to the defendant (Article 145 of the New Code of Civil Procedure).
- In any case of emergency, French courts may order any measures that cannot be seriously disputed or that are appropriate in light of the existing dispute (articles 808 and 872 of the New Code of Civil Procedure).
- Even where there is a serious defence raised by the defendant, the judge may always order such conservatory or restorative measures that are required so as to prevent imminent damage or stop a manifestly unlawful wrongdoing (articles 809, al.1 and 873, al.1 of the New Code of Civil Procedure).
- Where the existence of an obligation is not seriously disputed, the judge may award a money order to the creditor or order the performance of the obligation (articles 809, al.2 and 873, al.2 of the New Code of Civil Procedure).
The plaintiff, one of the members of the supervisory board (conseil de surveillance) of a company, had requested to no avail that the company communicate to him the ledger of the minutes of the meetings of the board. Upon an ex parte application by the plaintiff, a third-party was appointed by the court and instructed to obtain copies of such corporate documents. Once put on notice of the ex parte order the company appealed to the same judge, seeking that the ex parte order be withdrawn. As such application was denied by the first instance judge, the company lodged an appeal before the Court of Appeal in Douai, where the appeal was again denied.
The Cour de cassation overruled the judgment of the Court of Appeal, finding that the Court of Appeal had failed to ascertain whether circumstances were such as to justify that there be made an exception to the rule that all parties should attend applications. Indeed, only on an exceptional basis can interim or interlocutory remedies be granted ex parte, and that is where such remedies would become pointless should the defendant be put on notice beforehand.
For further information on this topic please contact Philippe Blaquier-Cirelli at Jeantet & Associés, Paris office, by telephone (+33 1 45 05 80 08) or by fax (+33 1 47 04 20 41) or by e-mail ([email protected]). Alternatively, contact Elie Kleiman at Jeantet & Associés, New York office by telephone (+1 212 314 9499), by fax (+1 212 582 3806), or by e-mail ([email protected]).
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