Interim measures and civil litigation.

• Author: Westberg, Peter

I A Court Drama for an Unperformed Drama II Purposes of this Study III Conventional Wisdom on Interim Measures IV A Different Picture V Overview of the Swedish Regulation A Basic Principles B The General Provision VI A Definitive Provisional Measure? VII The Inevitable Substitute to Litigation VIII Flexible and Prospective Enforcement of Justice I. A COURT DRAMA FOR AN UN-PERFORMED DRAMA

Let me begin by telling a story about a court drama that took place in the Swedish city of Malmo. Once upon a time--or just over a decade ago, to be more precise--the theatre company "Hipp" was about to stage the world premier of Jacques Prevet's play LES ENFANTS DE PARADIS. Just a few hours before the first performance, the district court in Malmo issued an injunction with immediate effect, forbidding the performance of the play. Earlier that day, before lunch, the playwright's heir applied to the district court (1) for an interim injunction. A judge granted the injunction a few hours later after finding that Hipp was about to commit copyright infringement. He found an immediate injunction was necessary in order to protect the copyright owner from the harms that might be caused by an unauthorized performance of the play. The judge granted an immediate injunction because the court could not deliver a judgment on the case's merits in time to prevent such harms. A subsequent judgment would be equally ineffective because it would be unable to repair the damages that would have already occurred.

The court's injunction was an interim order valid indefinitely until the case settled in a final judgment. The order also set out a fine of 100,000 Swedish crowns payable by the theatre company for each breach of the injunction. (2) Hipp, however, did not breach the order. The theatre company cancelled the premier at the last minute and chose instead to let the legal drama play out in the court.

The issue involved in this case was whether Hipp intended to perform the play without permission from the rightful owner, thereby committing copyright infringement. The heir to Prevet claimed that irreparable damages would be done to the renommee of the playwright if the performance were to go ahead as planned. Hipp had, of course, an entirely different view of the matter. It claimed that the parties had already reached an oral agreement a few months earlier regarding the right to perform the work. According to Hipp, only further details remained to be settled concerning the amount of compensation to Jacques Prevet's heir for the theatre's acquisition of the performing rights. The agreement was based on an understanding that the theatre made great economic and personnel investments in the preparation of the play for the world premier. The theatre asserted that the heir was fully aware of those circumstances.

Hipp successfully appealed the district court's injunction. This success, however, was short-lived. The court of appeals actually quashed the injunction; (3) finding that the application for an interim injunction was defective on one point: the amount of security offered by the heir.

The heir offered a certain amount of security against the damages Hipp might suffer due to a wrongful injunction. Unlike the district court, the court of appeals found that the amount proposed was too low and instead offered a figure it deemed more appropriate. After presenting the additional securities, the heir turned again to the district court for a new interim injunction on Hipp's performance of the play.

At this point, the theatre company had second thoughts on letting the drama play out in the courts. The parties agreed on a settlement and never demanded judgment. Hipp compensated Prevet's heir for the theatre's right to perform the play, and the world premier could be held. This copyright drama was over in a little more than a week, a considerably shorter time than it would have taken to settle the dispute through the ordinary process of civil litigation.

The court was never required to hold any oral hearings on the breach of copyright question. Consequently, neither the parties nor the general public knew whether Hipp acquired the performance rights through the alleged oral contract. Speedy resolution had its price though, especially according to the theatre company's legal counsel, who later claimed that the heir had used the interim measure to drive up her compensation for the right of performance:

The heir took the fullest advantage of the situation. She obtained conditions for the right of performance that must be unique in the history of European theatres for similar works. The compensation demanded was of a size way over the customary amount for the branch and conditions were made on the performance that were totally unheard of. All this happened without the theatre having had an opportunity to adduce evidence that it was not a case of infringement in copyright, and therefore, that there was no probable ground for the plaintiff's case. (4) This drama is just one of many cases that have run a similar course and may have received more or less attention in the media. Newspapers and television reports, however, seldom make it clear that the court decisions are actually only interim solutions, not a final judgment. In theory, such relief is not intended to be the final outcome of the dispute. It is also not intended to pressure the parties to abstain from going further with the litigation and to seek resolution through settlement. These effects will, however, often occur in practice.

2. PURPOSES OF THIS STUDY

   The drama described in the preceding section is the introduction to my treatise on interim measures in civil litigation. (5) This treatise is broadly based and problem-oriented. It examines the intended and actual functions of interim measures within the framework of a normative survey of published and unpublished Swedish court decisions. The 'official' purpose of interim measures, as a guarantee for enforcement, is set against the secondary purposes or effects that such measures have in practice, particularly their function in conflict resolution as a substitute for litigation. The treatise also explains aspects of interim measures that would explain their growing importance and effect. Furthermore, the treatise provides a critical evaluation of the raison d'etre for the institution of interim measures and its present structure.

   On the matter of methodology and legal science, this problem-oriented study adopts the perspective of the parties. The purpose of this viewpoint is not to provide the parties with a toolbox of legal advice on strategies for successful litigation or to suggest tricks and schemes of advocacy. Furthermore, because the "practical side" of the law is important, even if sometimes an unwanted element of legal reality, it will also be explored. While this party based instrumentalism may be disparaged by legal or political advocates, it is pedagogically efficacious for legislators and adjudicators.

   This author's study of the material did not begin with the consideration of a party-based perspective. Rather, the idea has emerged successively from processing the material over time. It is only after a time-consuming process that one fully realizes the difficulties in treating this subject only in the classical perspectives of the legislator and the courts. Gradually, the need arises to draw from the arguments of the parties in order to arrive at a richer picture of the functions, practical significance, and development of the institution of interim measures, such as guarantees for enforcement and form conflict resolution.

   Those who are familiar with security measures orders in Swedish case law understand they are often cursory and often devoid of any meaning. Furthermore, neither the travaux preparatoires (preparatory work) nor other sources of law give any guidance, through concrete cases or questions of principle. In this perspective, the arguments of the parties can breathe some life into the case law and give it more substance, thus elucidating the rationale of the court's decision.

   There are additional factors in the parties' perspectives to consider. One aspect of the parties' behavior is that a litigant should be a catalyst for practical needs borne out in reality and requiring legal protection. This enables the parties to be the initiators of legal development through case law as they present different situations and insist upon remedies. The courts can then prune the flora of needs, matching changes in society and new types of conflicts to the desire for stable law.

   Another aspect of party behavior is instrumentalism, which can take the shape of egoism. A system of rules or a procedure can be used for purposes other than those intended. One may encounter good purposes, which are not explicitly expressed in the legal order. The law must also respond to the inverse and equally prevalent purposes that are adverse or controversial. When this instrumentalism takes over and gains significant influence, it affects the potential for reaching the stated goal of the law. For a study of the party-based perspective, one must analyze the arguments of the parties. Comparing case law and party arguments provides information on the functions of interim measures, changes in functions, and the driving forces behind them.

   For the purpose of this study, a large amount of unpublished cases have been gathered and scrutinized, encompassing so-called Ocases from four of the six courts of appeal during the time period of 1981 to 2002. (6) In analyzing the cases, the author paid special attention to the parties' written submissions in order to understand what the parties wished to achieve through the interim measure, and to survey the content and structure of the parties' arguments. The value of this investigation is in determining what role the parties may have had or will have in the development of legal processes on interim measures...