Interim measures securing a claim

The purpose of requesting and/or granting interim measures is to provide temporary protection for a disputed right while the dispute is pending before the court against acts by the defendant that would hinder or prevent satisfaction of the claimant’s claim.

Protection by interim measures is intended to be swift and unexpected; for this reason, the defendant is not served with a copy of the application. For the same reason, the court competent to grant measures securing a future claim may be the court at the applicant’s place of residence (that is, the court to which the applicant can apply immediately).

Interim measures may be requested for any claim, regardless of the type of relief sought: an order for performance, a declaration, or a judgment creating, modifying or extinguishing a legal relationship. The most common situation is securing claims for payment by imposing a restraint on the defendant’s immovable property or an attachment over the defendant’s assets.

Interim measures may be sought for a future claim (not yet brought before a court) or a pending claim (already brought before a court).

There are several main differences between these two situations:

Interim measures securing a future claim (Article 390 of the Code of Civil Procedure):

Application — When a future claim is to be secured, the application for interim measures is a separate document and must clearly identify the future claim by setting out all the required particulars.

Time limit — For a future claim, the application for interim measures must naturally be made before the claim is brought. When granting measures securing a future claim, the court must set a time limit for bringing it. If evidence that the claim has been brought within the time limit is not submitted, the measures granted will be discharged. If the court establishes that the claim for which interim protection is sought has already been brought (through a check of its own motion or an objection by the defendant, if the defendant has become aware of the proceedings), it terminates the proceedings and forwards the application to the court before which the case is pending.

State fee — A fee is payable only when securing a future claim and amounts to BGN 40 (item 22 of Tariff No. 1 on State Fees Collected by the Courts under the Code of Civil Procedure). This fee applies regardless of the number of interim measures requested.

Processing the application — An application for interim measures securing a future claim must itself satisfy the requirements of Article 390 of the Code of Civil Procedure, which presupposes that it also sets out a procedurally compliant statement of claim. There is no basis in judicial practice for staying the processing of such an application pending the correction of defects. Nevertheless, if this is done and the directions are complied with, the court’s ruling is not thereby vitiated. This approach is often taken when the interim measure requested is unclear. However, the court is not required to give directions for remedying defects in the application (for example, specifying an interim measure) and may directly decline to examine it. In practice, however, in such cases the application is usually dismissed on its merits: where the court refuses to determine the substance of the request, its ruling is subject to cassation review (item 5 of Interpretative Decision No. 1/2001 of the General Assembly of the Civil College of the Supreme Court of Cassation), whereas, where the merits are determined, the appellate court’s ruling is final.

When granting interim measures securing a future claim, the court must set a time limit for bringing it. In this situation it is advisable for the ruling to state that the measures will be discharged if evidence that the claim has been brought within the time limit is not submitted. Otherwise, the interim measure will remain effective until the person affected by it requests its discharge. Within the meaning of Article 390 of the Code of Civil Procedure, discharge follows automatically from failure to bring the claim within the time limit. Nevertheless, directions are needed to avoid a situation in which the measures are discharged despite the claim having been brought, solely because evidence of its filing was not submitted.

Competent court — Subject-matter jurisdiction to determine an application for measures securing a future claim always lies with the district court (rayonen sad). Territorial jurisdiction lies, at the applicant’s choice, either with the court at the applicant’s place of residence or registered office, or with the court at the location of the property that will serve as security. Judicial practice accepts that this may also be the court at the location of the movable asset whose attachment is requested, or the court at the place of residence of the person believed to hold that asset.

Interim measures securing a pending claim (Article 389 of the Code of Civil Procedure):

Application — Where interim measures are requested in proceedings already pending, the application may be separate or included in the statement of claim. In either case, there is no need to identify the claim, since it is apparent: the application is filed in the case concerned. An exception applies where several claims have been joined in the same proceedings; the claim to be secured must then be specified if it is not apparent from the nature of the interim measure.

Time limit — Where interim measures are requested in pending proceedings, the application under Article 389 of the Code of Civil Procedure may be filed at any stage of the proceedings until the judgment becomes final. If the request is first made before an appellate court, the ruling may be challenged by an interlocutory appeal before the Supreme Court of Cassation, regardless of whether the appellate judgment in that case is subject to cassation review. If the request is first made before the Supreme Court of Cassation, its ruling is final. If it is made before the first-instance court, the appellate ruling is final (item 7 of Interpretative Decision No. 1/01 of the General Assembly of the Civil College of the Supreme Court of Cassation).

State fee — No fee is payable for examining an application for interim measures securing a pending claim.

Processing the application — When an application for interim measures concerns a pending claim, any defects in the statement of claim must first be remedied so that the proceedings have been duly instituted and the admissibility and probable merits of the claim can be assessed on that basis. The court is not required to give directions for remedying defects in the application for interim measures (for example, specifying an interim measure) and may directly decline to examine it. In practice, however, in such cases the application is usually dismissed on its merits: where the court refuses to determine the substance of the request, its ruling is subject to cassation review (item 5 of Interpretative Decision No. 1/01 of the General Assembly of the Civil College of the Supreme Court of Cassation), whereas, where the merits are determined, the appellate court’s ruling is final.

Competent court — In pending proceedings, this is the court before which the case is pending, including where the proceedings have been stayed (the first-instance, appellate or cassation court).

The court examines jurisdiction in interim-measures proceedings of its own motion. If the appellate court finds that the first-instance court lacked territorial jurisdiction, it sets aside that court’s ruling and forwards the application for determination to the district court with territorial jurisdiction.

The court should rule on the application for interim measures on the day it is received. This is an indicative time limit, and compliance is not always possible in practice. In all cases, however, the court should examine the application as soon as possible. Although no time limit is formally prescribed, interlocutory appeals against rulings on applications for interim measures should likewise be determined immediately.

If you are about to bring a claim to enforce a lawful right and are concerned that you may later be unable to enforce the judgment because the defendant may dispose of the property or money concerned, it is best to contact a qualified lawyer who can advise you on the steps needed to safeguard all your rights.