Ex parte: judicial measures without reciprocity?

In case of imminent infringements of intellectual property (IP) rights, the so-called ex parte measure can be invoked. This means that a court can rule without hearing the parties if the case is of such urgent importance that delay will cause irreparable damage. This measure seems to run counter to the principle of adversarial proceedings. Yet recently, this route seems to have been taken within ordinary civil procedural law as well. In 2023, the preliminary relief judge of the Amsterdam District Court passed an ex parte measure in non-IE cases in two decisions. This article will discuss (the emergence of) this measure.

Summary proceedings

Urgent interest must also be present for a claim to be granted in summary proceedings. The processing time of summary proceedings is – contrary to what the name suggests – not so much short. A summons will have to be issued, a hearing will have to be scheduled and the court’s decision will have to be awaited. This will often take several weeks to months.

Nevertheless, circumstances may arise where a plaintiff urgently needs an immediate (provisional) measure and summary proceedings will take too long. This need is often present when the defendant is abroad, as the summons period is then longer. A provisional ex parte measure can then provide a solution.

The ex parte provision

Ex parte proceedings are somewhat similar to summary proceedings. However, the major difference is that in an ex parte, parties are not heard. Because this is very drastic for the defendant, an ex parte will not be granted by the court just like that. On the other hand, the imposition of an ex parte measure may well remove the greatest urgency and prevent possible irreversible damage. For instance, in a crypto-investment scam case, a wallet with crypto currency was frozen by the court in Amsterdam. After the ex parte ruling, proceedings on the merits should be initiated at the court, so that the other party still has the opportunity to defend itself.

Legal basis

A legal basis for the ex parte provision – unlike in urgent IP cases – seems at first sight to be lacking in ordinary civil procedural law. Nevertheless, in 2023, the preliminary injunction court twice granted ex parte relief in non-IE cases. The power to impose this measure derives from the court in preliminary relief proceedings from the provision for interim relief during pending proceedings on the merits (223 Rv) and/or the imposition of an immediate measure in summary proceedings (254 Rv).

One swallow does not yet make a summer

The future will show whether these two judgments mark the beginning of a new development within procedural law. Indeed, it is possible that the application of the aforementioned articles will be reversed on appeal. Should this application be upheld, the ex parte measure will be an interesting instrument for litigation practice.

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