A guide to the UPC and the UP - Flipbook - Page 422
20-87 A fixed fee is also paid in an application for an order for provisional measures. 168 There will be
instances where such an application is not followed by proceedings on the merits and the value
of the interim relief will, therefore, need to be determined. The Guidelines state that the level of
recoverable costs in this situation should be calculated at 66 per cent of the value calculated in
accordance with the value of the infringement action. 169
20-88 Once the value of the proceeding has been determined, the applicable ceiling in the action is set
according to the table adopted by the Administrative Committee in its decision on the scale of
ceilings for recoverable costs (table 20-6).
Procedure for Altering the Applicable Ceiling
20-89 A request to alter the ceiling in a particular action must be made as soon as practicable and
must include all reasonably available evidence. This may be with the SoC or with the SoD, but in
any event, it must be lodged in sufficient time to enable the Court to make a decision before
closure of the interim procedures. The request will be dealt with by the Court without delay
after hearing the parties and at the latest before closure of the interim procedure. 170
Multiple Parties/Patents
20-90 The ceiling is to be applied by the Court to each instance of the Court proceedings, regardless of
the number of parties, claims or patents concerned. 171
Procedure for Recovering Costs
20-91 The Court has the power to order the parties to submit in advance of the oral hearing, a
preliminary estimate of the legal costs that they will seek to recover. 172 Note that this only
relates to legal costs and not to other expenses. The restriction appears to be intentional since
it is repeated in r.151(e) RoP. However, since legal costs will be a very large part of each party’s
costs and since the Court fees will be known, it will give the Court an indication of the level of
each party’s costs. The Preparatory Committee intended that this provision should help to avoid
ex post facto inflation of costs. It also enhances the predictability of the costs that a party may
have to pay if faced with an unfavourable decision and may assist the parties in settling the
action before the oral hearing.
20-92 When the Court delivers its judgment in the decision on the merits, it must decide in principle
on the obligation to bear the legal costs in accordance with art.69 UPCA. 173 In addition, the
Court can do one of three things:
168
169
170
171
172
173
174
–
It can, if it already has sufficient information, calculate and award the costs;
–
It can give an interim award of costs subject to any condition the Court may decide; 174 or
–
It can decide to do neither of the above and leave it to the successful party to start separate
proceedings for a cost decision pursuant to r.151 RoP.
See table 20-2.
para.II.2.b).5.b) referring to para.II.1.b) which in turn refers to para.II.1.a) Guidelines. See paragraphs 20-15 to 20-20.
arts 2(4) and (5) Scale of Recoverable Costs.
art.1(3) Scale of Recoverable Costs. This is in contrast to the explanatory note to the consultation document dated May 2015
where, on p.22, it stated that “It is proposed that each ceiling for recoverable costs of representation is applicable per
instance and party”.
rr.104(k) and 118(5) RoP.
r.118(5) RoP.
rr.119 and 150(2) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 412
