A guide to the UPC and the UP - Flipbook - Page 369
Applications Made without Hearing the Defendant (“ex parte”)
18-68 An applicant may request that its application be heard without hearing the defendant,
and if it does so should state its reasons. 95 The Court must consider whether those reasons
are well-founded. 96 The Court, in ordering a saisie on an ex parte basis will consider in
particular whether: 97
– Any delay is likely to cause irreparable harm to the applicant; or
– There is a demonstrable risk of evidence being destroyed or otherwise ceasing to
be available.
18-69 These criteria are, rather oddly, in the alternative. Since the most important requirement of a
saisie is to preserve relevant evidence, it is unclear why delay causing irreparable harm to the
applicant should of itself be sufficient for an order to be made ex parte. It should therefore be
read that a risk to the evidence is a prerequisite, but what allows the Court to make the order
on an ex parte basis is either delay causing irreparable harm or a demonstrable risk that the
evidence will be destroyed or otherwise cease to be available. A flow diagram showing the
various steps in the process for applying for a saisie on an ex parte basis is at figure 18-1.
95
96
97
r.192(3) RoP.
r.194(2)(b) RoP.
r.197(1) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 359
