An injunction is a Court order that enjoins a party either to perform a specific act, or to refrain from doing the same. ‘Interlocutory’, ‘Temporary’ or ‘Interim’ injunctions are used interchangeably. An injunction can serve as a guarantee that a debtor will return money or any liabilities to the applicant.

It may be granted before the merits of the parties’ cases have been fully considered at trial. For this very reason, and because it severely restrains a respondent, it seldom is granted, and the threshold for a requesting party to be granted such an injunction is high. The Court will employ the principle of the “balance of convenience,” whereby it will weigh the possible damage suffered by the applying party if the injunction is not granted, against the likely inconvenience (or cost) for the respondent if it is.

Interim measures in Thailand are listed under Section 254 of the Thai Civil Procedure Code (the “CPC”). Interim injunctions are considered equitable remedies in Thailand, which means they are within the inherent authority of all Courts vested with equitable jurisdiction. Specifically, the power of granting an interim injunction is vested with the Court that is conducting the trial. Under Section 254 of the CPC, a plaintiff may file an ex-parte application for interim measures together with his plaint or at any time before judgment.

There is a range of interim protective measures that may be granted by the Court.  The Court may issue a writ of seizure or attachment if there are reasons to believe that a property in dispute, or part of it, may be mishandled by the defendant. If the defendant is expected to create trouble or damage property, a plaintiff may be granted a temporary injunction so the defendant cannot transfer, sell, remove, or dispose of the property. There may also be an arrest or detention order issued by the Court if it deems that the defendant is in hiding for the purposes of evading summons or other orders by the Court. The Court may also issue such order if the defendant is considered likely to leave the jurisdiction of the Court or has removed or concealed any property or evidence relevant to the outcome of the dispute.

For a Court to grant an interim injunction, two critical elements must be satisfied:

• The applicant must establish a prima facie case or raise a serious issue for trial;
• On a balance of convenience, the applicant would suffer more harm than the defendant if the injunction were granted.

The first element entails an analysis of the applicant’s likelihood of success, but it does not include a prediction of the outcome of the subsequent case. Under Section 255, any other necessary ground as the Court thinks is just and reasonable will be considered in accepting an application. It is highly advantageous for the applicant to provide an undertaking regarding damages, which is generally required as part of any Court order. While this is not a requirement for an interim injunction application, it is widely recognised as a highly persuasive factor in the Court’s discretion. This is intended to compensate the defendant if it is later found that the interim injunction should not have been granted.

Emergency Injunction

In an urgent case, the plaintiff may file an emergency application alongside an interim injunction application, requesting the Court to immediately prescribe an order or issue a warrant in accordance with the application. The Court will expeditiously consider such an application.

The injunction will be granted in audita parte debitoris, meaning the defendant will not be summoned to hearings or examined. In practice, and in the absence of substantial evidence against the defendant, the Court often gives defendants a chance to express their views.

In Thailand, the threshold to obtain an emergency injunction is very high. An applicant must prove there is an imminent threat of serious harm. An applicant must also successfully challenge the merits of the claim against which the emergency application is being sought and prove the Respondent has no, or limited, assets in Thailand against which the Applicant may seek to eventually enforce a judgment once the case is concluded.

If the Court is satisfied there is an emergency and the application is reasonably based on the plaintiff’s argument, or the witness or documents adduced by the plaintiff, the Court will prescribe an order or issue a warrant within the scope of such an application and stipulate the conditions deemed necessary.

Measure of Protection

Apart from the interim injunction, a party may petition the Court for an order authorising a measure for his/her benefit during the trial or for the execution of judgment. Examples of this process include depositing the property or money in dispute with the Court or a third party, appointing a manager or trustee for the place of business in dispute, or appointing a third person to administer to an incompetent person. An application for an order granting a measure of protection cannot be made on an emergency basis.

Conclusion

Ultimately, interim injunctions can be considered to prevent injustice pending trial. But such measures do not decide the issues or merits of a case. Still, these measures, when granted, are compelling: a party who violates an interim injunction may be found in contempt of Court and subject to imprisonment or monetary penalties. They help maintain a status quo, preserve rights, or to provide a quick remedy to a potentially damageable situation to a party.

Article by Pisut Rakwong, Founder of Pisut and Partners, and Anne Coulon, Regional Legal Adviser of DFDL 

The information provided here is for information purposes only and is not intended to constitute legal advice. Legal advice should be obtained from qualified legal counsel for all specific situations.

Contacts

Anne Coulon Regional Legal Adviser, DFDL anne.coulon@dfdl.com

Pisut Rakwong Founder & Managing Partner, Pisut and Partners pisut@pisutandpartners.com