A guide to the UPC and the UP - Flipbook - Page 408
–
40 per cent if the action is withdrawn before the conclusion of the
interim procedure; and
–
20 per cent if the action is withdrawn before the conclusion of the oral procedure.
20-33 Only one of the reimbursements set out above will apply per action and party, but where
more than one reimbursement is applicable, the larger will be applied for each party.
In exceptional cases where there has been withdrawal of an action or settlement, the Court
may decide to deny or decrease the reimbursement. The Court has complete discretion on
this issue, but should have regard to the stage of the proceedings and the procedural
behavior of the parties. 64 For example, a situation where a claimant brings an action without
any prior notice and the defendant surrenders immediately because the defendant was not
aware of the patent, may encourage the Court to reduce the reimbursement despite the fact
that few of the Court’s resources have been used because the matter was resolved so quickly.
20-34 The party seeking reimbursement must lodge a reasoned application and the Court will deal
with it without delay. If satisfied that the reimbursement is appropriate, the Court will direct
the Registrar to make the payment as soon as practicable. 65
Financial Hardship
20-35 If the claimant (not being a natural person) is unable to pay the Court fees, demonstrated
by presenting reasonably available and plausible evidence that payment would threaten its
economic existence, the Court may reimburse the fixed and value- based fees in whole or part.
The Court will, in coming to a decision, take the circumstance of the case and the procedural
behaviour of the party into consideration and may give the defendant an opportunity to
be heard. 66
20-36 It is not clear why natural persons are neither eligible for the same reduction to the
Court fees as small and micro enterprises nor for the partial or total waiver of fees
due to financial hardship. Natural persons can only apply for a reduction of the costs
payable to the prevailing party 67 or for legal aid. 68
Before the Court of Appeal
20-37 For fee and costs purposes, proceedings before the Court of Appeal are considered entirely
new and separate proceedings, but the fee structure and the level of the fees of the
actions/procedures remain the same. Infringement actions and similar type actions still attract
a fixed fee and a valued-based fee if the value of the action is over €500,000. The same method
of calculating the value of the action is used and the same scale of fees as set out in table II to
r.370 RoP (table 20-3). Table IV to r.370 RoP (reproduced at table 20-5) sets out the fixed fees
for an appeal.
64
65
66
67
68
r.370(9)(d) and (e) RoP.
r.370(11) RoP.
r.370(10) RoP.
See paragraphs 20-79 and 20-80.
See paragraphs 20-111 to 20-132.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 398
