A guide to the UPC and the UP - Flipbook - Page 320
r.194(5) RoP which applies to applications for preserving evidence (saisies). 65 R.194(5) RoP,
whilst not absolutely clear, at least indicates more clearly that the Court should inform the
applicant and that the point at which this happens is prior to determination of the substantive
application. R.194(5) RoP refers to the applicant being informed and that this is done prior to
informing the defendant and therefore, logically, this should take place prior to full
determination of the substantive application. Whether the differences between rr.194(5) and
209(4) RoP assist in construing the latter is debatable. Both occur after reference to the Court
exercising a discretion for disposal of the application, 66 reference to the factors the Court must
consider in doing so 67 and provision for dealing with urgent applications. 68 Since both the high
level purposes of rr.194(5) and 209(4) RoP are prima facie similar and the frameworks in which
they fit are very similar, one would expect the two rules to operate in substantially the same
way and this may be the better interpretation of r.209(4) RoP.
16-64 Whatever the correct interpretation of that aspect of r.209(4) RoP, there may be a further
difficulty with the rule from the applicant’s perspective. The rule provides the applicant with the
ability to withdraw the application and to request the Court to order the application to remain
confidential. Under r.209(4) RoP it is unclear whether the Court must grant such a request and
therefore whether the applicant can be sure that its making of an application will remain
confidential. More objectively problematic is that the RoP do not specify the factors that the
Court should consider when faced with such a request or, therefore, what particular bases
an applicant should identify in order to substantiate its request. 69
16-65 R.209(5) RoP provides that the presence of a protective letter may also provide the applicant
with a reason to withdraw the application. This implies that the applicant will be informed, at
least, of the presence of such a protective letter. The rule is silent as to whether the applicant
should be provided with any further information and in particular whether the applicant is
provided with a copy of the protective letter under r.207(8) RoP before deciding whether to
withdraw the application; although from the wording of the rule, it would suggest not.
Therefore the applicant will not know whether the protective letter was filed by the
defendant to the application or not. 70
Irreparable Harm or Destruction of Evidence
16-66 An application for provisional measures without hearing the defendant is also addressed in
r.212 RoP. R.212(1) RoP refers to such an order being made:
“in particular where any delay is likely to cause irreparable harm to the applicant or where there
is a demonstrable risk of evidence being destroyed. Rule 197 71 shall apply mutatis mutandis”.
16-67 The reference to delay causing irreparable harm is distinct from the test for provisional
measures where the defendant is present which refers to the Court taking account of
the potential harm for either party 72 and any unreasonable delay. 73 The purpose of this
requirement is clear. The purpose of the second requirement, however, is not so
straightforward. It is framed specifically in terms of the preservation of evidence, one
of the objectives of the saisie, and is not directly relevant to what will be achieved by a
provisional injunction.
65
66
67
68
69
70
71
72
73
See chapter 18 (Orders to Produce Evidence Including “Saisies”) paragraph 18-77 to 18-80.
rr.194(1) and 209(1) RoP.
rr.194(2) and 209(2) RoP.
rr.194(4) and 209(3) RoP.
Note that r.262 RoP relating to public access to the register is stated to be subject to, inter alia, r.209(4) RoP.
See paragraph 16-88.
Relating to orders to preserve evidence (saisie) without hearing the defendant.
r.211(3) RoP.
r.211(4) RoP.
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A Guide to the UPC and the UP 310
