Temporary injunction: what the court checks and what security is required

Interim relief is the procedure in which the court intervenes before it has become clear who is right. Because of this, the regulations surround it with two circles: conditions for granting it, and a price the applicant pays in advance.

The framework is the Civil Procedure Regulations, 5779-2018, not a “Civil Procedure Law”, which does not exist. The rules are in the chapter on interim relief, and it is worth knowing them before you file.

The purpose, and it sets the limit

“The purpose of interim relief is to secure a prima facie right during the legal proceeding, and the proper and efficient conduct of the proceeding or the proper enforcement of the judgment.”Civil Procedure Regulations, 5779-2018, regulation 94 (unofficial translation), Nevo text

This wording limits what can be requested. Interim relief is meant to preserve a situation until the decision, not to obtain by a shortcut what the claim itself seeks. An application that is in fact the final judgment in disguise will fail under this definition.

The three conditions

Regulation 95(b) provides: “Where an application for interim relief has been filed within a claim, the court may grant the relief requested if it is convinced, on the basis of sufficient prima facie evidence, that a cause of action exists, that the conditions for granting the relief as set out in this chapter are met, and that the interim relief is necessary to achieve the purpose.”

• Sufficient prima facie evidence of the cause of action: not proof on the balance of probabilities, but not a bare allegation either. Documents, correspondence, a detailed affidavit.
• The conditions in the chapter are met: including the condition specific to the type of relief requested.
• Necessity: a question separate from the merits of the claim: what will happen if the injunction is not granted now.

The special condition for an injunction

“The court may order the respondent to refrain from doing, or to refrain from continuing to do, any act, by itself or through anyone on its behalf, if it is convinced that there is a reasonable concern that not granting the injunction will substantially burden the proper enforcement of the judgment.”Civil Procedure Regulations, 5779-2018, regulation 109 (unofficial translation), Nevo text

This is the center of gravity of the application. Not “I will suffer damage”, but a substantial burden on the proper enforcement of the judgment. The wording points to a practical question: if you win in the end, will there still be something to enforce? An asset that will be sold, reputation that will be worn down beyond repair, information that will be spread and cannot be gathered back, such as a trade secret: these are the examples that fall within the wording.

The price: a personal undertaking and security

Regulation 96(a) sets a condition, not a recommendation, and the court may, for special reasons, grant an exemption from the security only, not from the personal undertaking (regulation 96(c)): “Interim relief shall be conditional on a personal undertaking by the applicant to compensate… and on security… in order to compensate for any damage caused to the person against whom the order is directed as a result of granting the interim order, if the order expires or its scope is narrowed.”

This is the part that surprises applicants. The injunction has a price: whoever obtains it takes on a defined financial risk in favor of the other party. Regulations 126–127 deal with undertakings and security in other contexts, and regulation 101 sets out what happens to the security at the end: if no claim or application for compensation for damage caused by the interim relief was filed within 90 days from the date it expired, the security is returned to the applicant, and the court may extend this period for special reasons.

In whose presence the hearing is held

The default is a hearing in the presence of both parties. Regulation 97(a): the application will be heard in the presence of the parties, “but the court may, for special reasons, grant provisional interim relief ex parte, if it is convinced, on the basis of sufficient evidence, that there is a reasonable concern that the delay caused by holding the hearing in the presence of the parties, or by bringing the application to the respondent’s attention, will defeat the purpose of the interim relief or cause the applicant serious damage”.

The words “provisional interim relief” are precise: what is granted ex parte is temporary until the hearing, not a decision. And regulation 139 provides that an appeal against a decision rejecting an application made ex parte will also be heard ex parte, unless the court ordered otherwise.

What to attach to the application

1. A detailed affidavit that verifies the facts: not a summary, but a timeline with marked documents.
2. A separate explanation of necessity and of the condition in regulation 109. These are questions different from the question of who is right in the claim, and they are argued separately.
3. The wording of the injunction itself, exact and enforceable: what exactly is prohibited, for whom, and until when. A vague injunction is not worth much at the enforcement stage.
4. Addressing the undertaking and the security under regulation 96, including a proposal for the amount of the security: it is better to propose than to be told.
5. Full disclosure, especially when an ex parte hearing is requested. Concealment at this stage comes back later in the proceeding.

Finally, interim relief in an administrative proceeding is a separate world: there it is an interim order under section 9 of the Administrative Courts Law, 5760-2000 (חוק בתי משפט לענינים מינהליים, התש״ס-2000), and a separate application under regulation 9 of the procedure regulations. The details are in the administrative petition guide.

Frequently asked questions

What does the court check in an application for interim relief?

Regulation 95(b) of the Civil Procedure Regulations, 5779-2018: sufficient prima facie evidence that a cause of action exists, that the conditions for granting the relief as set out in the chapter are met, and that the interim relief is necessary to achieve its purpose.

What is the special condition for a temporary injunction?

Regulation 109 provides that the court may order the respondent to refrain from an action if it is convinced that there is a reasonable concern that not granting the injunction will substantially burden the proper enforcement of the judgment.

What does it cost the applicant?

Regulation 96(a) provides that interim relief will be conditional on a personal undertaking by the applicant to compensate, and on security, in order to compensate for any damage caused to the person against whom the order is directed as a result of granting the order, if the order expires or its scope is narrowed.

When is the hearing held ex parte?

Regulation 97(a) provides that the application will be heard in the presence of the parties, but the court may, for special reasons, grant provisional interim relief ex parte if it is convinced that there is a reasonable concern that the delay caused by holding a hearing in the presence of the parties, or by bringing the application to the respondent’s attention, will defeat the purpose of the relief or cause the applicant serious damage. In such a case a hearing in the presence of the parties is scheduled, as a rule within 14 days (regulation 97(e)).

Can you get a temporary injunction even before filing a claim?

Yes, under conditions. Under regulation 95(c) of the Civil Procedure Regulations, 5779-2018, the court may grant interim or provisional relief even before a statement of claim is filed, if it is convinced that this is justified in the circumstances, provided that the claim is filed within seven days from the date the order was granted, or by any other date the court orders. Among the considerations the court weighs: whether the applicant delayed excessively in filing the statement of claim or the application (regulation 95(d)(3)).