Ex parte order (ordonnance sur requête)

An ex parte order (ordonnance sur requête) is a provisional decision made without hearing the other side in cases where the applicant is entitled not to summon an opposing party, as defined in Article 493 of the French Code of Civil Procedure. It allows a measure to be obtained by surprise, where its effectiveness would be compromised if the opponent were informed. It is made by the president of the court or by the judge designated by statute.

Conditions for the order

The application is filed in duplicate, with reasons and the supporting exhibits. The applicant must justify, in the application or in the order, the circumstances that warrant a departure from the adversarial principle, failing which the measure is liable to be withdrawn. The president rules on an ex parte application only in the cases specified by law or to order urgent measures that the circumstances require not to be taken adversarially. The order is enforceable on production of the original alone, and a copy of the application and of the order is left with the person against whom it is enforced.

Uses in intellectual property

The application serves first to authorise a saisie-contrefaçon, which is governed by a specific regime under the French Intellectual Property Code and does not require any justification for departing from the adversarial principle. It also makes it possible to obtain pre-action investigative measures (in futurum) under Article 145 of the Code of Civil Procedure, provided a legitimate reason and the need for a non-adversarial measure are shown. Finally, the court may order provisional measures against infringement on an ex parte basis, in particular where any delay would be likely to cause irreparable harm to the applicant.

Means of recourse

If the judge rejects the application, the applicant may appeal within fifteen days. If the order grants the application, any interested party may refer the matter back to the judge who made it to have it varied or withdrawn, by way of an application to withdraw the order (référé-rétractation), which restores adversarial debate. The order does not have res judicata effect as to the main issue. Before the Unified Patent Court, comparable measures may be ordered without hearing the defendant, in particular an order to preserve evidence, and the party concerned may request a review.

Key points

An ex parte order is only as strong as the justification for departing from the adversarial principle. The application should be drafted as if the opponent were going to debate it the next day, since the référé-rétractation will put it under the opponent’s scrutiny. Also check that the measure sought is proportionate to the aim pursued, particularly where confidential documents are targeted.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. Where the question arises in a real case, the useful moment is almost always before proceedings are issued.

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