Types of security and conditions for obtaining them

Securing claims in civil proceedings – types and conditions for obtaining

Securing claims in civil proceedings is a form of interim legal protection, the primary purpose of which is to ensure the practical effectiveness of a future judgment or to safeguard the possibility of achieving the objective of the proceedings even before the merits of the case are decided. The legislature permits a request for security in any civil case, and as a general rule, security may be sought both before proceedings are commenced and during their course. At the same time, once the entitled party has obtained an enforceable title, the granting of interim relief is permissible only within a strictly defined scope, where it is intended to secure a claim for performance whose due date has not yet arrived.

Conditions for granting security for claims

The basis for granting security is the fulfilment of two conditions: substantiation of the claim and substantiation of a legal interest in the granting of security.

Preliminary substantiation of the claim

Substantiating the claim means demonstrating its credibility to a standard lower than that required for proof in court proceedings, with the burden of argument focusing on presenting a coherent account of events and such evidence as renders the claim plausible. In practice, this most commonly involves:

• documents,
• correspondence,
• transfer confirmations,
• contracts,
• statements of account,
• other forms of evidence that enable the court to assess that the claim is not unfounded and arises from a specific legal relationship.

Legal interest in the granting of interim relief

A legal interest exists where the absence of security would prevent or seriously impede the enforcement of a judgment in the case, or would otherwise prevent or seriously impede the achievement of the purpose of the proceedings. In practice, it is precisely this legal interest that is often the decisive factor, as it requires proof of a current, real threat, rather than merely a general fear of insolvency.

The legislator has provided for a specific procedural facilitation in cases concerning payment arising from commercial transactions, where a legal interest is deemed to be prima facie established if the statutory conditions regarding the value of the transaction and the lapse of at least three months from the due date of the outstanding debt are met.

Types of security in civil proceedings

The choice of security measure depends on whether the subject of protection is a monetary or non-monetary claim.

Security for monetary claims

In cases involving monetary claims, security is granted within the framework of the statutory catalogue of measures, covering in particular the attachment of movable property, wages, claims from a bank account or other claims and property rights, as well as the encumbrance of immovable property with a compulsory mortgage or the establishment of compulsory administration over the debtor’s business or farm.

From the perspective of litigation practice, it is of fundamental importance here to accurately ‘locate’ the assets or sources of payment to which the security is to apply, and to reasonably determine the amount of security in relation to the claim being pursued.

Security for non-monetary claims

In the case of non-monetary claims, the legislator has adopted a flexible approach. If the subject of the security is not a monetary claim, the court grants security in such a manner as it deems appropriate in the circumstances, without excluding the methods provided for the security of monetary claims.

The practical significance of this provision is that security may be structured as a measure maintaining the status quo until the judgment is delivered, or as a measure preventing actions that could render a future judgment moot. The legislator cites, for example, the possibility of regulating the rights and obligations of the parties for the duration of the proceedings, imposing a prohibition on the disposal of assets or rights covered by the proceedings, suspending other proceedings aimed at enforcing the judgment, or ordering the entry of a warning in the land register or the relevant register.

The principle of proportionality in the selection of a protective measure

Regardless of the type of claim, the court should select the measure in a manner that ensures a balance of the parties’ interests. This means that an application for interim relief should demonstrate not only why a specific measure is effective, but also why it is proportionate and necessary in light of the specific litigation risk.

The effects of granting interim relief

The granting of interim relief has a direct protective effect in favour of the claimant, as it reduces the risk that, in the course of the proceedings, the defendant’s assets will be diminished, the subject matter of the dispute will be lost, or irreversible consequences will arise which could in practice hinder or frustrate the enforcement of a future judgment. The proceedings for interim relief are, moreover, expedited in nature – the application should be examined without delay, as a rule no later than within one week of the date of receipt by the court, which serves to maintain the effective protective function of the interim relief.

If the order granting the interim measure is to be enforced, the provisions on enforcement proceedings apply mutatis mutandis to its enforcement, with the ex officio issuance of an enforcement clause being of particular importance. This solution is intended to streamline and expedite the enforcement of the interim measure, so that the interim measure meets the need for immediate protection.

Protection of the obligated party’s interests and control mechanisms

Given the intrusive nature of the security measure, the legislator has provided for mechanisms to balance the position of the obligor and limit the risk of abuse.

• Firstly, the court may make the enforcement of the order granting interim relief conditional upon the claimant providing a security deposit to cover potential claims by the defendant or other persons affected by the enforcement of the interim relief, should such claims arise as a result of its enforcement.
• Secondly, the obligor is entitled to request the revocation or amendment of a final order on security if the circumstances of the case so justify, in particular a change in the grounds for the security or the need to adapt the form of security to the current situation.
• Thirdly, an appeal may be lodged against the decision of the court of first instance regarding the security measure, which serves as a means of reviewing the court’s interim intervention and guarantees the verification of the grounds and proportionality of the measure applied.

Lapse of security and liability for damages

The regulation of the lapse of security and liability for damages remains an element of the guarantee system. Security lapses in the event of a final dismissal or rejection of the claim or application, the dismissal of the action or application, the discontinuance of proceedings, and also in specific cases concerning security granted prior to the commencement of proceedings – if the entitled party fails to comply with the requirements regarding the timely bringing of an action and the consistency of the scope of the claim pursued in the main proceedings with the scope of the security granted.

Notwithstanding this, the obligor is entitled to a claim against the obligee for compensation for damage caused by the enforcement of the security in the cases provided for by law, whilst specifying the time limit within which such a claim must be brought, which is intended to ensure certainty in trade and resolve legal uncertainty.

Security for claims in civil proceedings – summary

A properly drafted application for interim relief should consistently demonstrate the credibility of the claim and the existence of a genuine legal interest in the grant of interim relief, and then justify the choice of measure as adequate and proportionate. Such a structure of the reasoning increases the likelihood of the security being granted, whilst at the same time limiting the risk of its subsequent revocation or amendment and minimising the possibility of liability for damages should the security be set aside. This matter requires precision both at the stage of drafting the application and in selecting the appropriate interim measure – these issues fall within the broader scope of court proceedings, where litigation experience is of significant practical importance.

Author

Adrianna Bracichowicz

Associate

Adrianna Bracichowicz is a dedicated lawyer at our firm, specializing in business law and also in litigation law. She graduated with a master's degree from the University of Wroclaw, and also developed her skills while studying at the University of Bergen in Norway under the Erasmus+ program. She is currently continuing her legal education by completing the first year of her lawyer's apprenticeship.

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