Types of Injunction
Portuguese procedural law provides for seven specific types of injunction, which are described and regulated by law. Beyond these, a non-specific injunction is applicable to all residual cases which are not specifically governed by the Civil Procedure Code.
Where a court dismisses an application for one type of injunction, the party seeking relief may not attempt to obtain another type of injunction in order to achieve the desired effect.
An injunction is a court order directing a third party to:
- refrain from performing an unlawful act which is considered to have significant consequences;
- continue to perform an act;
- allow the plaintiff to perform an act; or
- arrest or attach assets in order to serve as a guarantee for collecting a debt.
In general, an injunction concerns whatever can or must be done in order to protect a right or legal situation that is endangered.
In normal proceedings, the courts are usually slower in granting remedies than the necessities of the situation demand. In view of this, procedural law provides for a set of quick and provisional remedies for this purpose, which are exceptional and subsidiary to a normal court procedure.
An injunction is based on urgent necessity and the dangers that may ensue from delay. Since it is a provisional remedy, the court need only recognize the probability of the existence of the alleged right in order to grant the order. Thus, it is not necessary to present exhaustive proof of this right; rather it is sufficient to demonstrate the likelihood of its existence.
The procedure is thus very short, and in some cases the judge will make his decision even before the defendant is heard. However, in the normal proceedings that should follow, the court may rule against what was decided in the injunction.
As stated, a total of eight different types of injunction are available:
- General injunction (procedimento cautelar comum). Each of the following injunctions has its own specific grounds and goals. Therefore, the law provides for a general injunction in order to protect any rights to which none of the seven specific injunctions apply. The aim is to obtain from the court the appropriate provisional remedy required for protection of the right.
- Provisional restoration of possessions (restituição de posse). This aims to return to the plaintiff an asset of which he has been violently dispossessed by a third party (eg, by burglary, robbery, or by physical or psychological threat). It is based on the principle that unless proved otherwise, actual possession depends on the existence of a title.
- Suspension of resolutions of corporate bodies (suspensão de deliberações sociais). This concerns resolutions made by corporate bodies, or by statutory bodies of any other cultural, humanitarian, religious or sporting association, which are illegal or contrary to the company bylaws and which may cause damage to a shareholder, member or associate.
- Provisional alimony (alimentos provisórios). This aims to grant the plaintiff (usually a spouse, child or anyone else entitled by law to receive alimony from the defendant) urgent provisional alimony where the defendant refuses or is reluctant to satisfy this elementary right.
- A further injunction (arbitramento de reparação provisória) grants an injured party a monthly sum as provisional compensation for damage caused by the defendant.
- Arrest or seizure of assets or receivables (arresto). This is one of the most important and practical injunctions, resembling the Mareva injunction in English law. Its purpose is to obtain an order restraining a defendant from disposing of or otherwise dealing with his assets in such a way that might frustrate the plaintiff's claim. It is thus used to allow or facilitate the collection of a debt, although sometimes it is used to seize pirated goods, in which case it is called arresto repressivo.
- Suspension of building (embargos de obra nova). This aims to suspend or prevent construction (eg, of a building, road or wall) that violates a right of the plaintiff. It protects the full enjoyment of an asset which is threatened by the construction. It is also based on the principle that a construction, once built, may prove difficult to demolish.
- Enrolment (arrolamento). This resembles arrest, as both imply a seizure of assets or rights. However, the grounds and aim of enrolment are different. While arrest aims to facilitate the collection of a claim based on the risk of deterioration of the assets, enrolment aims to preserve the assets from such risk based on the plaintiff's right to share such assets (eg, in the case of divorce or distribution of an estate), and not on a financial claim.
The plaintiff must always initiate the main proceedings within 30 days of the date on which the plaintiff's lawyer is notified of the order. If the defendant has not been heard, this term is reduced to 10 days. If the main proceedings are not commenced within these time limits, the order will be lifted and the remedies cease immediately.
The plaintiff is also obliged to pursue the main procedure with all due diligence. If the action comes to a halt because the plaintiff has not taken the necessary steps to ensure they continue (eg, failure to provide a document) the order may also be lifted.
If the injunction is dismissed or terminated for any of these reasons, the plaintiff may be held responsible for any damage he has caused to the defendant where he has acted with malice or gross negligence. The plaintiff is further prohibited from applying for another injunction in connection with the action.
In filing the injunction the plaintiff must immediately identify any witnesses and file or apply for any other prima facie evidence (eg, documents or expert reports). The testimonies are recorded so that they may be re-examined by the appeal court, if necessary.
On top of these common requirements, each individual injunction has its own specific requirements. As mentioned, some types of injunction do not allow for the defendant to be heard before the order is been issued and enforced, whereas others require his prior participation.
This provides for non-specific remedies and complements the seven additional interlocutory measures. It can be used to protect any right that may be seriously affected if the court does not take urgent measures to conserve it.
In order to do so, the court may:
- authorize the applicant to perform a certain act in order to protect his right;
- order the defendant to refrain from performing a certain act;
- order the delivery to the plaintiff or a third party of certain assets which are the object of an action; or
- order any other act that will result in the necessary protection.
The applicant must establish that he has a right and that there is a reasonable fear that the defendant may cause a serious injury to this right before the court can make its final decision. The court may or not serve a notice to the defendant before it decides whether to grant the injunction application. Prior notice will always be given wherever this will not jeopardize the efficiency of the measure.
The court may not order an injunction if the damage to the defendant that will result from the order is greater than that which the plaintiff is trying to avoid.
Provisional restoration of possessions
The scope of this injunction is to protect the applicant's possessions against violent acts of dispossession. The applicant must prove ownership of the assets, and that they were taken unlawfully by violent means.
The injunction will be granted without notifying the defendant beforehand; the defendant may contest the measure only once the assets have been returned to the plaintiff.
Suspension of resolutions of corporate bodies
This injunction relates to the resolutions passed by corporate bodies of companies or of any other association, and those passed at general meetings of condominium owners.
In order to be suspended, the resolutions must be either illegal or against the company bylaws, and if executed, must be potentially harmful to the shareholders, associates or condominium owners.
If he attended the meeting in question, a shareholder, associate or condominium owner has 10 days from the date on which the resolution was passed in order to request the suspension of the resolution. If he did not attend this meeting, he must apply for the injunction within 10 days of hearing the resolution.
To obtain an injunction, the applicant must first prove his capacity as shareholder or the like in relation to the defendant (the company, association or condominium administration is always the defendant, and not the remaining shareholders or suchlike who voted in favour of the resolution). He must then produce a written statement of claim to enable the court to conclude that the resolution infringes the law and/or the company bylaws. The applicant must also allege that the enforcement of the resolution may cause him considerable damage.
Even if all of these prerequisites are met, a judge will not issue the injunction if suspension of the resolution may cause more damage to the company than that which will result to the applicant with the execution of the resolution.
The injunction will never be granted without the company being heard beforehand. The company is summoned to answer the plaintiff's statement of claim, and once both parties have produced their evidence the judge will decide. Once the writ of summons has been served, the company (or association or condominium administration) cannot legally execute the contested resolution.
Only those resolutions that have not yet been fully performed may be suspended (since the injunction aims at suspending performance of the resolution, if the resolution is entirely performed it obviously cannot be suspended). In this case, full legal proceedings must be commenced in order to obtain a judgment declaring the resolution in question null and void.
This injunction concerns family law. It allows the court to grant alimony to a family member (eg, wife, husband, child, parent, grandparent or grandchild) who is legally entitled to such financial support from the defendant.
The basis for this injunction is that the time it would take to reach a judgment in the main action may create serious problems for the applicant in relation to basic and sensitive matters connected with survival, education, housing and so on.
The applicant must establish that he is legally entitled to receive alimony from the defendant and that the amount requested is strictly necessary for nourishment, housing and clothing.
The defendant will always be notified of the proceedings before the order is issued, and is allowed to contest.
Once alimony is granted, the court may terminate or suspend it, or increase or reduce the amount, at any time.
Regular payment for damages
The injunction that provides for the payment of a monthly sum as provisional compensation for damage can be granted in the case of a main legal action in which indemnification is claimed as a result of death or personal injury.
The applicant must prove that a real need exists to receive a provisional monthly sum while the final decision is pending, and that the defendant is responsible for the damages.
The exact amount to be paid each month will be determined by the judge.
This is an interlocutory order requested by a claimant against a debtor which restrains the defendant from disposing of or otherwise dealing with his assets in order to frustrate the plaintiff's action to enforce a judgment over these assets.
Before an injunction for arrest is ordered, the applicant must allege and provide prima facie evidence of the likely existence of the credit, and the risk that the debtor may remove or conceal his assets in such a way that they will not be available for attachment when the judgment in the main proceedings becomes enforceable.
Arrest is also admitted against a third party who has acquired the assets subject to seizure, provided that the third party's acquisition of these is already under dispute in a legal action.
The debtor is never heard before the injunction is granted, in order to guarantee the order's efficiency. Once the assets have been seized and delivered to a court-appointed trustee the defendant is notified to answer (the plaintiff may nominate this trustee, but the court is free to reject the nomination if it wishes).
Suspension of building
This injunction relates to damages that may result from construction work which could impede or jeopardize the applicant's full enjoyment of a right over property or a related asset which is threatened by the construction. It is applicable, for example, in cases where the applicant may lose the views from or access to his property, or may suffer any other damage as a result of the new building.
The applicant must thus demonstrate that he has a property right, or mere possession or other right, over an asset which is under threat from a new building, or from any other construction work that is planned or already underway.
The applicant must apply for the injunction within 30 days of the date on which he became aware of the facts. If it decides to grant the injunction, the court will order the suspension of the construction work.
The judge is free to hear briefly the owner of the new building, or the person for whom the work is being performed, before deciding whether to grant the injunction. However, the defendant is only entitled to enter fully into the procedure (eg, to produce evidence and appeal) once the suspension has been ordered and effected.
Enrolment is an interlocutory order with similar effects to arrest. However, the latter has a specific aim: the seizure of assets that may permit the payment of a debt through their forced sale.
Enrolment is also a seizure, but its goal is different from arrest since it does not relate to the collection of a debt, but rather the satisfaction of any right over the assets themselves, for instance their partition (eg, as consequence of a divorce) or their use for a specific purpose, such as evidence in court.
There are some similarities between enrolment and the Anton Piller order of English law.
In order to obtain the injunction, the applicant must prove that there is a reasonable fear that chattels, real estate or documents may disappear, and that he has a legal right - at this stage an apparent right is sufficient - over or relating to the assets under consideration which may be jeopardized if they are not seized.
Once the order has been granted, the court will enrol and carefully describe the seized assets.
Enrolment is a typical protective remedy which permits assets to be placed under the custody of a court-appointed trustee (again, the applicant can nominate the trustee, but the court has discretion to reject this suggestion).
Enrolment is always ordered without first hearing the defendant. The defendant will be summoned and heard by the court only once the assets have been enrolled and described.
The common procedures for all kinds of injunctions are as follows:
- Using the services of a lawyer, the applicant must make a written application to the court alleging the facts, establishing a need for security, and providing a list of witnesses (no more than eight) and copies of the relevant documents necessary to prove the existence of the right.
- An injunction can be filed both before or during the main legal proceedings, in which the merits of the case are examined.
- Once the initial written application for the injunction has been filed, the court will examine the witnesses and other evidence and make its decision. If the application is accepted, then the court will enforce the injunction either through a notice served on the defendant or a third party, or by means of specific performance.
- If the judge accepts the application, the plaintiff must file the initial pleading of the main action to which the injunction refers within 30 days of the date on which his lawyer is notified of the injunction order, or within 10 days of this date in cases where the defendant has not yet been heard. If the main action is not commenced within this term, then the injunction order will be discharged at the request of the defendant. The plaintiff may have to pay an indemnity to the defendant if he has acted in bad faith.
- If the judge rejects the application, or if it is withdrawn under the above circumstances, the plaintiff may not file for another identical injunction.
- The applicant and the defendant must each be represented in court by a lawyer who holds power of attorney. In urgent cases, which is usual with injunctions, the lawyer may commence the injunction proceedings before he receives power of attorney. However, that document must be issued to the lawyer concerned and filed by him in court as soon as possible, not least because the lawyer remains personally liable for all legal costs until he establishes that he has been duly instructed by the applicant.
All practising Portuguese lawyers are admitted as an advogado in all courts throughout Portugal.
- As stated, some types of injunction do not allow for the defendant's participation before the order has been issued and enforced. However, once notice of the order is served on the defendant, he may oppose the application, contest the facts or appeal.
If the defendant wishes to contest the factual basis upon which the injunction has been ordered, he must do so within 10 days of the date on which the order is served on him. Additionally or alternatively, the defendant may lodge an appeal to the second-instance court (Tribunal da Relação) on a point of law within this same 10-day period, and thereafter (in the case of claims involving amounts higher than Esc3 million) to the Supreme Court of Justice.
- In some types of injunction the defendant may halt the order by providing security instead.
- Injunction proceedings are dealt with urgently, both on normal working days and on court holidays.
- As mentioned, the injunctions that do not allow the defendant to intervene before the order is enforced are arrest, the provisional restoration of possession, the suspension of building and enrolment. In the case of a general injunction it is up to the judge to decide whether to allow the defendant to be heard before enforcing the order. These proceedings are naturally quicker than those requiring the prior hearing of the defendant.
- In all cases the court may demand security from the applicant before the order is enforced, although this is rare.
- Portuguese courts will have jurisdiction in those cases which have a foreign element (eg, where one or both parties is a foreign national or resides abroad, where the factual grounds of the application have occurred abroad, or where the assets to be subject to the order are located abroad), but it is necessary to examine each case individually.
With respect to the arrest of ships, bunkers, cargo and freight a special regime resulting from the Convention Relating to the Arrest of Seagoing Ships signed in Brussels on May 10 1952 provides that any ship in Portuguese waters may be arrested, even though the Portuguese courts may not have jurisdiction to deal with the merits of the claim.
For further information on this topic please contact António Borges Pires, Henrique dos Santos Pereira or Luís Rolo at Sociedade Civil de Advogados by telephone (+351 213 712 630) or by fax (+351 213 712 631) or by e-mail ([email protected]).
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