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Standards for Provisional and Protective Measures in Civil Litigation: What Ethiopian Courts may Learn from US Courts

Document Cited in Related
Vincent
Author
DOI10.3366/ajicl.2016.0157
Pages329-345
Published date01 August 2016
Date01 August 2016
DEFINITIONS, CONCEPTS AND RELEVANCE OF PROTECTIVE AND PROVISIONAL MEASURES Definitions and concepts of protective and provisional measures

Defining protective and provisional measures is a difficult task mainly for two reasons. Firstly, protective and provisional measures can be used by courts to address different problems. Secondly, different jurisdictions have designed different protective and provisional measures.1 These two reasons make providing universally acceptable definitions for protective and provisional measures a challenging task. During the process of drafting The Hague Conventions there was an attempt to define protective and provisional measures.2 However, the idea was dropped later because of the great variety of these measures and it was believed that there was no clear purpose to be achieved by providing a definition for protective and provisional measures.3 The working group on protective and provisional measures came with the following definitions for the 19th session of The Hague Conference in June 2001:4

a measure to maintain the status quo pending determination of the issues at trial;

a measure providing a preliminary means of securing assets out of which ultimate judgment may be satisfied; and,

a measure to restrain conduct by a defendant to prevent current or imminent future harm.

 Some scholars have tried to provide definitions focusing on the nature and purpose of protective and provisional measures. One author defined protective and provisional measures as temporary orders aimed at protecting parties' rights pending final decisions.5 Another author defined it by explaining its purpose as follows: ‘protect plaintiff from irreparable injury and to preserve the court's power to render a meaningful decision after a trial on the merits.’6 Relevance of protective and provisional measures in civil litigation

A brief discussion on the role of procedural rules will provide important insights to understand the relevance of protective and provisional measures in civil litigation. Hence, a brief discussion on the role of procedural laws in civil litigation follows. Procedural laws generally regulate how the substantive laws are applied in adjudicating disputes.7 Procedural laws are intertwined with legal traditions and countries' notions of justice. Procedural rules strive to maintain a balance between the different values and objectives of a society.8 As a result their functions and objectives may vary from one legal system to another. Accuracy, cost and time, efficiency and achieving substantive and procedural justice are among the main objectives of procedural rules.9 Scholars argue that ‘the appropriate goal of legal procedure is the achievement of justice’10 and justice prevails when the court procedure allows parties to control the process to enable them to produce the fullest possible report of evidence in the court.11 Thus procedural laws should give parties a reasonable time to present and defend their case for justice to be served.

Time is vital for parties to effectively control the process and for courts to ‘give parties what is legally due to them.’12 The relevance of time for procedural justice can be seen from three perspectives. The first is when insufficient time has been given to adjudicate the case. Time is important for effective and fair court litigation.13 A judgment given without allowing sufficient time for parties to prepare their evidence and arguments and for the courts to examine the law and the facts may affect the quality of procedural rules to deliver just decisions.14 Courts need time to identify the issue, to evaluate evidence and to search the relevant law. Though it may not be always true, time and judicial error generally have an indirect relationship to a certain period of time.

Secondly, delay may increase the risk of error because evidence may be lost by the passage of time. Witnesses' memory will decline with the passage of time and evidence may be obliterated or destroyed. Hence adjudication should be conducted before it is too late to determine the facts of the case as accurately as possible. Here again it may be broadly claimed that after a certain period of time, time and judicial error generally have a direct relationship. That means the more the case is delayed the more likely it would be for judicial error to occur.

The third perspective of the relationship between time and procedural justice is that ‘time may erode the utility of judgment’.15 Parties go to a court of law seeking a remedy to rectify what they consider is a violation of their legal rights or to protect their legal rights from being violated. Therefore, a remedy has to be obtained before it is too late for the remedy to have the intended effect of rectifying the wrong. Delay in a court of law may fundamentally affect the parties' rights and interests. The plaintiff may suffer irreparable damage due to the inability of the court to give immediate decisions. Taking advantage of the delay in a court of law, the defendant may also take some actions that render the final decision of the court useless or ineffective.

The inherent need for time by courts necessitated some kind of mechanism to avoid or to minimise unwarranted damages to the plaintiff. Hence, protective and provisional measures are necessary mechanisms that are designed to mitigate problems that result from long and complicated civil litigation process.16 In the next paragraph the article will precisely discuss the relevance of protective and provisional measures in civil litigation.

Protective and provisional measures serve many purposes and their objectives may differ from one jurisdiction to another.17 Firstly, provisional and protective remedies preserve the status quo during litigation.18 Preserving the status quo provides a guaranty for parties that, while the case is to be tried, the economic position of the parties remain unchanged.19 Nonetheless, there are those who argue that maintaining the status quo cannot be considered as a valid or desirable purpose of protective and provisional remedies.20 The hub of the argument is that the courts deal with legal rights, therefore when they decide on preliminary injunctions they are giving or denying certain legal rights, not simply preserving the status quo.

Secondly, protective and provisional measures mitigate the consequences of delay. It is natural that courts need time to decide cases; however, it may be devastating for the moving parties to wait till the end of the litigation to get a legal protection for their rights. They may need the assistance of a court to avoid irreparable damages that they may suffer unless immediate injunctions are provided.

Thirdly, protective and provisional measures may affect the behaviour of disputants.21 Preliminary injunctions can be used to pressure the rival party by causing financial stress.22 The pressure caused by such protective and provisional measures can also be considered an instrument to motivate out-of-court settlement of disputes.23

No matter how important protective and provisional measures are in civil litigation, they must be used with the utmost precaution. The need for extreme due care in using such measures is frequently enunciated by different authors.24 Supreme Court Justice Henry Baldwin expressed his opinion on protective and provisional measures in the following terms:

There is no power the exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, or more dangerous in a doubtful case, than the issuing of an injunction; it is the strong arm of equity, that never ought to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear, the injury impending or threatened, so as to be averted only by the protecting preventive process of injunction: but that will not be awarded in doubtful cases, or new ones, not coming within well-established principles25

It is in the interest of justice that legal systems have to formulate criteria that provide them a basic ground in exercising their power to avoid unprincipled application of protective and provisional measures. Formulation of criteria is necessitated mainly for the following reasons. Firstly, courts have to decide on protective and provisional measures at the early stage of the litigation.26 This implies that courts have to decide with very limited knowledge and evidence about the case. The limited evidence at the early stage of the litigation may in turn increase the probability of judicial error; therefore, refined and well developed criteria are needed to minimise the risk of error. Secondly, the standard of proof that is required for protective and provisional measures is generally lower than what is required for final decisions in many legal systems.27 Therefore, clear criteria will help to protect the rights of parties involved in the litigation.28 Thirdly, appeal against protective and provisional measures is limited commonly to abuse of discretion.29 Thus, providing clear criteria will provide predictability and certainty for the judicial system. Fourthly, setting clear criteria on the required evidence for protective and provisional measures will help disputants to know what evidences they need, thus they can make the required preparation before lodging their application to get protection from the court. This helps the moving parties to avoid unnecessary cost and also saves courts' time and resources. For the abovementioned reasons, protective and provisional remedies should be granted only when certain criteria are fulfilled. However, there are differences among legal systems on how and when to use provisional measures in civil litigation to promote justice and fairness

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