Do not underestimate interim relief

Wait too long, and interim relief may no longer be available

A construction dispute can escalate quickly. Works stop, payments are blocked, a bank guarantee is about to be called or an essential decision cannot wait for ordinary proceedings. Interim proceedings may then appear to be the obvious solution. They are not, however, an automatic emergency brake. A party wishing to rely on them must act immediately: urgency created by its own conduct or by delay will not be accepted.

Urgency must be demonstrated

Interim relief requires concrete urgency: there must be a threat of loss or serious prejudice that makes an immediate decision necessary. That urgency must exist both when the proceedings are initiated and when the court gives its decision. The measure sought must itself also be urgent. The court will consider whether ordinary proceedings or another specific procedure can still provide an effective result in time, potentially by means of shortened time limits or a provisional measure pending a final decision.

Urgency may not result from the claimant’s own conduct or inaction. A party that is aware of an impending problem but fails to act promptly may itself undermine its ability to rely on interim proceedings. Even once preparations have begun, the matter must continue to be pursued diligently: the urgency must remain uninterrupted until the court gives its decision.

A provisional measure, not a final determination

A decision in interim proceedings is provisional and does not finally determine the dispute. The court may assess the apparent strength of the parties’ respective rights and may order temporary measures to prevent loss, preserve an existing situation or enable further investigation. It may not, however, finally determine the parties’ rights: the court subsequently deciding the merits must remain free to reach a different conclusion.

That distinction is crucial in construction disputes. A particularly typical interim measure is the appointment of a court expert to make prompt findings on an adversarial basis. The expert records the condition of the works while allowing all parties concerned to make observations. Evidence is thereby preserved and, once the necessary findings have been made, the works can resume as quickly as possible. The measure sought must in each case correspond to the threatened prejudice and must remain urgent, provisional and useful. A claim seeking a final determination of liability, payment or contractual rights, or seeking irreversibly to undo an act that has already been carried out, will in principle exceed that limit. The court will also balance the parties’ interests: would the consequences for the claimant in the absence of the measure be more serious than the consequences for the defendant if the measure were granted?

The correct procedure must be chosen immediately

Interim proceedings are normally commenced by writ of summons. The summons period is in principle two days and may be shortened by the presiding judge. Where a foreign party is involved, the ordinary rules extending procedural time limits apply. The competent court must also be identified in advance. These short time limits mean that the client must immediately map out the relevant facts, documents and parties. The opposing party may still submit written arguments shortly before the hearing, so the case must be prepared sharply from the outset and no adjournment should be assumed.

Procedural strategy remains important after the decision. Depending on the procedure followed and the status of the party concerned, specific remedies may be available against an interim order or an order made on an ex parte application. Interim proceedings do not necessarily replace proceedings on the merits. A party requiring a final ruling on liability, payment or contractual rights should therefore commence the substantive proceedings in good time. Limitation and forfeiture periods must also be monitored separately. As a general rule, preserving the claim requires the appropriate proceedings on the merits to be brought in time; commencing interim proceedings alone will not necessarily be sufficient.

Extreme urgency: ex parte application

In exceptional circumstances, the presiding judge may order a measure on an ex parte application without first hearing the other party. This requires absolute necessity: adversarial proceedings would make the measure impossible or deprive it of any useful effect. The other affected party may subsequently challenge the order. Because the court initially hears only one version of the facts, the necessity of the application, the measure sought and all relevant circumstances must be presented with particular care and completeness.

Early legal advice avoids losing procedural options

Before commencing interim proceedings, check at least the following:

1. 01Was action taken immediately once the threat became known, so that the urgency was not created by the claimant’s own conduct or delay?
2. 02Is the measure sought genuinely provisional, sufficiently urgent and still useful, without finally determining the merits of the dispute?
3. 03Is the asserted right sufficiently plausible and does the balance of interests favour the requested measure?
4. 04Have the correct court, procedure and summons period been identified, and are interim proceedings genuinely the most appropriate option?
5. 05Have all relevant parties, evidence and factual developments been identified before proceedings are commenced?
6. 06Should proceedings on the merits be prepared or commenced at the same time, and have all limitation and forfeiture periods been checked?

Feyaerts Law assists contractors and developers where a construction dispute requires rapid intervention. Contact us immediately when a dispute threatens to escalate. Given the urgency requirement, even a limited delay may reduce the prospects of success of interim proceedings or make that procedure unavailable altogether. A prompt analysis makes it possible to choose the correct procedure, preserve evidence and seek an effective measure in time.