A guide to the UPC and the UP - Flipbook - Page 201
also has three months to lodge its SoD 254 and the same period to lodge a counterclaim for
revocation, if it wishes to do so 255 (both irrespective of whether a preliminary objection is
lodged unless the judge-rapporteur decides otherwise). 256 The computation of this time period
starts on the same date, i.e. Saturday 10 June 2023, and expires on Sunday 10 September 2023.
The period is not suspended during the judicial vacation. 257 As the period expires on a Sunday,
it is automatically extended to Monday 11 September 2023, or if that is not a working day in the
relevant Contracting Member State, the next working day in that Contracting Member State. 258
Decisions by Default
Court of First Instance
11-144 Upon request, a decision by default may be given against a party where the RoP so provide if a
party fails to take a step within the time limit foreseen by the RoP or by the Court. 259 The
wording appears to limit decisions being made by default to those circumstances where the
RoP so provide. For example:
– Where a claimant fails to comply with a request made by the Registry to correct the
deficiencies in its SoC; 260
– Where a defendant fails to comply with a request made by the Registry to correct the
deficiencies in its SoD; 261
– Where a party fails to provide security for costs when ordered to do so; 262 or
– Where an order, for example to produce evidence, is made against a party by the judgerapporteur during the interim procedure. 263
11-145 Further, although the RoP do not specify that a decision can be given where a party fails to file a
defence, the UPCA Statute 264 contains such a provision and r.355(3) RoP states that a decision
by default against a defendant of the claim or counterclaim may only be given where the time
limits for the defence to the claim or counterclaim have expired. Further, the judge-rapporteur
is given such a wide discretion under r.103 RoP (see last bullet point in paragraph 11-144 above)
that it could be used to cover a wide number of instances where a party fails to comply with an
order of the Court.
11-146 A decision by default may not be entered unless the Court is satisfied that either: 265
– The SoC was served by a method prescribed by the internal law of the state addressed for
the service of documents in domestic actions upon persons who are within its territory; or
– The SoC was actually served on the defendant in accordance with the RoP. 266
11-147 Furthermore, the facts put forward by the claimant must justify the remedy sought. 267
254
255
256
257
258
259
260
261
262
263
264
265
266
267
r.23 RoP.
r.25 RoP.
r.19(6) RoP.
r.300(h) RoP.
r.301(1) RoP.
r.355(1)(a) RoP.
rr.16(4) and (5) RoP.
rr.27(3) and (4) RoP.
rr.158(4) and (5) RoP.
rr.103(1) and (2) RoP.
art.37(1) UPCA Statute. The terms of the UPCA and the UPCA Statute prevail where there is a conflict with the RoP (r.1(1) RoP).
r.277 RoP.
Specifically part 5, chapter 2 RoP. See paragraphs 11-90 to 11-101.
r.355(2) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 191
