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NEWSLETTER 2011
284
Recovery for Unjust Preliminary Injunctions
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Att. Alper Uzun
Concept
The preliminary injunction – also known as interim or interlocutory
injunctions - is one of the provisional remedies for the purpose of
preserving the perspective rights of the parties which is subject of a legal
action until the final determination is given and it is regulated in Article
101 of Civil Procedural Code (“CPC”) and Article 389 of the New Civil
Procedural Code (“New CPC”) which shall enter into force on October
1, 2011. The preliminary injunction may be granted upon request of one
of the parties either prior to or following the filing of the action to redress
the pecuniary loss.
The party, making motion for a preliminary injunction is obliged to
provide with a security deposit in order to pay the damages sustained
by the other party or the third parties in case the request for preliminary
injunction is determined to be unjust. In the case that the motion for
preliminary injunction is determined to be made unjustly and therefore the
interim decision is reversed, the enjoined party and the third parties may
claim the harms inflicted on them as a result of wrongfully-issued interim
decision triggered by unjustly made preliminary injunction motion.
The Conditions for Action and Judgment
Despite the fact that the action to recover damages resulting from
unjust preliminary injunction is not clearly expressed in CPC, in practice
the action is being filed on the grounds of Article 110. However, Article
399. of New CPC embodies this action in the Code with a specific
provision.
The text of the article is as follows:
“(1) The party requesting the preliminary injunction shall
be obliged to indemnify the damages resulting from unjust
preliminary injunction in case the preliminary injunction is
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Article of July 2011