Interim measures and civil litigation.

• Author: Perlmutter, Richard M.

INTRODUCTION

In the following study Professor Peter Westberg explores what he believes is a distortion in the use and effect of interim measures in Sweden (what are called pretrial or interlocutory orders in the United States). Professor Westberg concludes that the use of interim measures in Sweden, often granted by Swedish courts after what he characterizes as a "cursory" review, which in many cases is "devoid of meaning," has the unintended effect of substituting for full-scale civil litigation. He claims that this phenomenon is "remarkably similar throughout the part of the world influenced by western culture."

Professor Westberg's study of the real-life impact of interim measures in Sweden touches issues that are hardly alien to U. S. courts and lawyers. Equity orders are granted at the outset of litigation only when there is a perceived emergency demanding a court's action in order to preserve its ability to fashion an effective final remedy after trial on the merits. The inherent conflict with traditional attitudes about civil litigation in the United States is pivotal in the procedural and substantive doctrine surrounding such interim measures. Early rebellious colonists of the United States brought a hostility to equity and an antipathy to coercive measures. The United States' libertarian, frontier mentality, and deep distrust of chancery courts as autocratic, imperious, and undemocratic, (1) combined with the steadfast commitment to a citizen's right to have his or her day in court, makes the practice of granting relief after only an abbreviated or truncated procedure both truly extraordinary and reason for hesitation and skepticism. The bedrock credo of the U. S. civil litigation system holds that decisions not forged in the fires of full and fair adversarial proceedings are suspect and more likely to be wrong and unjust.

Professor Westberg's study of Swedish decisions leads him to conclude that parties are often able to achieve their real objective through the back door of interim relief, making further civil litigation superfluous. The inference is that this is "gaming" the system-reaching one's ultimate destination without successfully completing the arduous trek through the adversarial system and a full-blown trial on the merits. His concerns about "the tension between certainty and speed" and the elevation of "good 'process economy' [to] ... a higher status" are, he claims, essentially universal. Thus, they raise interesting questions about the attitude of U. S. courts toward granting pretrial orders. Are the rules and procedures for granting interlocutory relief in the United States better at avoiding this phenomenon than those in Sweden? If Professor Westberg's conclusions are correct and interim measures do work to shortcut and marginalize civil litigation, is that a bad thing?

To illustrate his thesis, Professor Westberg discusses a case that is dramatic in every sense: at the last minute, a Swedish court enjoins a theater company's presentation of a play upon application of the playwright's heirs and copyright holders. The interim order was granted with immediate effect and was valid indefinitely until final judgment in the case could be rendered. The court was convinced the movant would suffer substantial and irreparable harm if the play were performed before the merits of the case were fully adjudicated. To enforce its order the court stipulated a substantial financial penalty to be paid by the theater company in the event of noncompliance--in contrast to the threat of coercive civil or punitive criminal contempt, as would be the case in the United States.

Professor Westberg concludes that this case gave the copyright holders all the relief they sought without requiring them to prevail in a full trial on the merits. He laments that the interim injunction coerced an extravagant settlement payment by the theater company to the copyright holder, despite its claim that months earlier it had reached an oral agreement with the copyright holders giving it the right to perform the play. Westberg argues that the theater company was denied its day in court and, therefore, never had the opportunity to prove that production would not have violated the copyright because of the alleged prior deal. He concludes that the interim order was essentially equal to a final disposition of the case and a substitute for civil litigation.

I will later consider how this case would have been decided by a U. S. court and offer comments on Professor Westberg's observations about its final outcome and its real effect as a substitute for civil litigation. First, however, I turn to a brief review of the standards for granting interim relief in Sweden as described by Professor Westberg and then to a comparison of such standards with those generally applied by courts in the United States.

In Sections V and VII, Professor Westberg reviews and analyzes the standards applied by Swedish courts in considering whether to grant interim relief. Westberg explains that these are principally statutory, with the dearth of relevant published cases resulting in uncertain development of the law. Thus, trial judges lack clear and consistent guidelines to rely on when deciding whether exceptional measures are needed to secure enforcement of a future judgment (i.e., a seizure or other provisional order to preserve the status quo during the ensuing litigation). Professor Westberg comments that this lack of development of the law through supreme court cases makes it impossible for lower courts to "discern ... a greater theory on what conduct of the defendant ... would count as a sabotage measure" and, therefore, prohibit interim relief.

Professor Westberg implies that the defendant theater company in his illustrative case did not have the opportunity to present its side of the case before the emergency injunction was issued. Like in the United States, when such an acute need for interim relief is required to avoid a danger...