The practical aspects of drafting and reviewing a motion for provisional relief in civil procedure were discussed by lawyer, lecturer, and founder of the ‘Young Lawyer School’ project Tetiana Lezhuk during a professional development event for lawyers held at the National University of Kyiv-Mohyla Academy Law School.
The lecturer thoroughly analyzed with participants the practical aspects of drafting and reviewing a motion for provisional relief in civil procedure, including:
- 1. Requirements for a motion for provisional relief under the Civil Procedure Code.
- 2. Common mistakes when filing a motion.
- 3. Types of provisional relief.
- 4. Counter-provisional relief: judicial practice.
- 5. Filing a motion before filing a lawsuit.
- 6. Practical aspects of implementing a court ruling.
Regarding the characteristics of a motion for provisional relief in civil procedure, the focus is on the following:
1. Requirements for a motion for provisional relief under the Civil Procedure Code
The importance of the relief provision tool:
1. The ability to ensure court decision enforcement if the claim is successful.
2. Preservation of the subject matter of the claim.
Upon a party’s request, the court may take measures to provide provisional relief as stipulated by Article 150 of the Civil Procedure Code of Ukraine.
Provisional relief can be granted both before a claim is filed and at any stage of the case if the lack of such measures could significantly complicate or prevent the court decision’s enforcement or effective defense, or the restoration of violated or contested rights or interests of the plaintiff, for the protection of which they have applied or intend to apply to the court, as well as for other reasons specified by law.
2. Common mistakes when filing a motion
Common mistakes in the content of a motion:
- Lack of information on the application of counter-provisional relief;
- Missing all necessary details for proper identification; inconsistency of measures with the subject of the claim;
- Measures identical to satisfying the stated claims are not allowed if the dispute is resolved on the merits;
- Lack of sufficient evidence.
3. Types of provisional relief
In accordance with Article 150 of the Civil Procedure Code of Ukraine, a claim can be secured by:
1) imposing an arrest on property and/or funds belonging or due for transfer or payment to the respondent and held by them or other persons;
1-1) imposing an arrest on assets that are the subject of dispute or other assets of the respondent corresponding to their value in cases of unfounded assets recognition and their recovery to the state’s income;
2) prohibition of certain actions;
3) imposing an obligation to perform certain actions in cases where the dispute arises from family legal relations;
4) prohibiting other persons from taking actions regarding the subject of the dispute or making payments, transferring property to the respondent, or fulfilling other obligations towards them;
5) suspending the sale of seized property if a claim is filed to recognize ownership rights to this property and to lift the arrest;
6) suspending enforcement based on an executive document challenged by the debtor in court;
8) suspending customs clearance of goods or items;
9) arresting a maritime vessel to secure a maritime claim;
10) other measures in cases provided by laws and international treaties ratified by the Verkhovna Rada of Ukraine.
It is important to verify the possibility of applying a specific measure of provisional relief. If necessary, multiple measures of provisional relief can be applied simultaneously.
4. Counter-provisional relief: judicial practice
The court may require the party filing a motion for provisional relief to provide compensation for damages to the respondent that may be caused by the provisional relief (counter-provisional relief).
The court may cancel provisional relief measures on its own initiative or upon a reasoned request from a party to the case.
A court ruling canceling provisional relief measures taken by the court or refusing to cancel provisional relief can be appealed.
Refusal to cancel provisional relief does not prevent a repeated request with the same motion if new circumstances arise justifying the need to cancel provisional relief.
Judicial practice:
- When considering a motion for provisional relief, only the question of the grounds for taking provisional relief measures is decided, and the substantive legal claims and objections of persons participating in the case are not resolved, and the case’s substantive outcome is not decided in advance. Resolution of the Cassation Court of the Supreme Court dated July 24, 2024, No. 567/459/23(61-10214sv23).
- An appellate court ruling on provisional relief, issued as a result of reviewing the relevant first-instance court ruling on provisional relief, is both a basis for enforcement and an executive document, so it must meet the legal requirements for an executive document. Supreme Court ruling of December 7, 2023, in case No. 757/33742/19.
- When deciding on provisional relief, the court must consider the interests not only of the plaintiff but also of other persons. Supreme Court ruling of December 13, 2023, in case No. 522/21977/21.
- Provisional relief provides temporary legal protection of the plaintiff’s rights and interests until the court resolves the dispute and the court decision becomes legally binding. Provisional relief measures are court intervention in disputed legal relations until they are resolved, so they must be applied by the court on grounds and in the manner directly provided by law. Supreme Court ruling of June 1, 2022, in case No. 380/4273/21.
5. Filing a motion before filing a lawsuit
If a motion for provisional relief is filed before filing a lawsuit, the applicant must present the lawsuit within ten days, unless other deadlines are set by law. In the case of a motion for the arrest of a maritime vessel, thirty days from the date of the ruling on provisional relief.
If a motion for provisional relief is filed before the case is opened, the motion must additionally specify the full name (for legal entities) or name (surname, first name, and patronymic) (for individuals) of other persons who may become parties to the case, their location (for legal entities) or place of residence or stay (for individuals), postal codes, the identification code of a legal entity in the Unified State Register of Enterprises and Organizations of Ukraine, the registration number of the taxpayer’s registration card (for individuals, if available), or passport number and series for Ukrainian citizens, known contact numbers, and email addresses.
The registration number of the taxpayer’s registration card or passport details of other parties – individuals who are not entrepreneurs – are indicated if known to the applicant.
In a motion for the arrest of assets that are the subject of dispute in a case concerning the recognition of unfounded assets and their recovery to the state’s income, sufficient data must be provided to consider the assets unfounded, and in a motion for the arrest of other assets of the respondent corresponding to the value of the disputed assets, justification must also be provided for the impossibility of imposing an arrest specifically on the disputed assets. If such a motion raises the issue of its consideration without notifying the respondent, it must also provide proper justification for such necessity.
6. Practical aspects of implementing a court ruling
According to Article 157 of the Civil Procedure Code of Ukraine:
1. A court ruling on provisional relief is an executive document and must meet the legal requirements for an executive document established by law. Such a ruling must be promptly enforced from the date of its issuance regardless of its appeal and the initiation of enforcement proceedings.
2. Depending on the type of relief measures taken, a copy of the ruling on provisional relief is simultaneously sent by the court to the applicant for immediate execution to all persons affected by the provisional relief measures and identifiable by the court, as well as to relevant state and other authorities for appropriate action.
3. A ruling on the arrest of a maritime vessel is a basis for detaining the vessel or restricting its movement in the port where the vessel is located or heading until the provisional relief measures in the form of arresting the maritime vessel are lifted. After receiving a copy of the vessel’s arrest ruling, the captain of the maritime port where the vessel is located, the branch of the Administration of Ukrainian Seaports in the maritime port where the vessel is located, the relevant bodies of the State Border Guard Service of Ukraine, and customs authorities are obliged to take measures preventing the arrested vessel from leaving the port.
4. Persons responsible for not enforcing a ruling on provisional relief bear legal responsibility as established by law.