Carta Forense

After having approached the subject of the interlocutory relief (based on urgency), but filed on a preceding basis (articles 303/304), the next step is to analyze the topic related to the temporary provisional injunction, pleaded on that same basis (article 305 and following articles).

Granting a provisional injunction as a measure filed on a preceding basis – in “preliminary proceedings,” as it was set forth  in the sole § of article 801 in the 1973 CPC – used to be common in that legal system. In that case, it was more accurate to name it as “preparatory” because that law was grounded on several elements – or moments -of division, consistent with the autonomy of the injunction. Therefore, there was firstly the preliminary order and, later, there was the “main action”.

However, as it was analyzed in the prior article, the 2015 CPC put an end to this autonomy and, right now, the temporary provisional injunction is argued together with the proceedings of the “permanent” or “final” injunction. Therefore, it should have been expected the matter to go through the necessary adjustments.

Similar to the previous statute, in the new system the burden of the plaintiff’s claim amounts to the “exposition of the litigation and its grounds, a short explanation of the right to be protected, and the eventual harm or risk that may occur towards the intended final judgment” (art. 305). In other words, the new law roughly reissues the requirements listed in items III and IV of article 801 of the 1973 CPC. And, truthfully, it is not far different from the text in the heading of the new article 303, which deals with the interlocutory relief based on urgency, but filed on a preceding basis: in this case, the plaintiff has the burden of “mentioning and pleading the final judgment of the injunction”, which had already been mentioned in the “exposition of the litigation,” the right “that is sought” and “the risk of damage.” Once again, there is the confirmation of what had already been highlighted in the previous article: in the 2015 CPC system, the temporary relief – either provisional or interlocutory- will be granted “when there are elements showing the likelihood of the right to be protected.” (art. 300).

From then on, however, the resilience of the autonomy of the provisional injunction does not go beyond the fact that, actually, everything happens in a single proceeding. This is due to: a) the defendant will be summoned to challenge the restraining order and indicate the evidence to be produced (article 306); b) if the defendant is in default, all the alleged facts will be taken for granted (in principle, they are the facts described in the lawsuit, which gave rise to the provisional injunction – art. 307); c) if the pleading (provisional injunction) is challenged, the law sets forth that the “common procedure” has to be followed (article 307, sole §); d) when the requested step has been accomplished, the plaintiff has the burden of filing the “main pleading” within thirty (30) days – although, as noted before, this occurs in the same procedural context – in which case the cause of action may be “amended”.

In general, the model provided for the provisional injunction repeats the one for the interlocutory relief, both filed on a preceding basis. There is some diversity towards the terminology (apparently without a logical justification, as for example, when articles 303, § 1, I, and 308, § 2, are confronted). However, they have in common the provision that established two pleading moments: the first one, grounded on elements – allegation and evidence – which may be less consistent, and adjusted to a superficial knowledge, which should be appropriate to the urgency of the situation; and, the second moment, grounded on the “permanent” or “main” temporary relief. In neither case there is reference to a “main action” because, as it was said and repeated, no new proceedings are to be started (including no further payment of legal fee – head of article 308).

As it happens in the case of the interlocutory relief filed on a preceding basis, if the plaintiff does not discharge the burden of the second pleading moment – that means, if the “main pleading” is not stated – the effectiveness of the measure that was granted will cease. In this case, one can say that the article in the new code is not only similar to the rule of art. 808, I, of the 1973 CPC, but there is some kind of identification between them.

It is true that the initial pleading act may cover not only the provisional injunction, but also the “main pleading” (art. 308, § 1). It is also true that, in the case of the  “main pleading” the defendant will not be served with a new summons as the lawyers will be officially noticed for the conciliation and mediation hearing on behalf of their clients (art. 308, § 3). Although this conspires in favor of the unity of the proceeding, one question may arise: in case the plaintiff submits at once both the provisional injunction and the main pleading, and if the provisional injunction is granted, will the defendant be serviced pursuant to art. 306 (to challenge), or otherwise, will the conciliation and mediation hearing be held pursuant to art. 334 (art. 308, § 3)? One possible solution that could reconcile both provisions would be to service the summons, and to allow the challenge to the temporary provisional injunction independently of setting the date for the hearing, except for the possibility of challenging the main pleading after that hearing session, if applicable.

Critically speaking, the new statute represented an advance considering what was possible: it was faithful to the reality that systematically denied the autonomy of the provisional injunction; it permitted the opening of the adversarial system for the provisional injunction (which is essential, since its cause of action does  not need to be totally coincident with the cause of action of the main pleading); it tried to  harmonize the two pleading elements (temporary provisional injunction and “main” pleading), and adjust them to the structure of the common procedure, which begins with setting the date for the conciliation and mediation hearing.