A guide to the UPC and the UP - Flipbook - Page 423
Interim Award of Costs
20-93 There is no obligation on the Court, but it has the discretion to make an interim award of costs
to the successful party in the decision on the merits. 175 This is in addition to any interim award
of damages (which itself “shall at least cover the expected costs of the procedure for the award
of damages and compensation on the part of the successful party”). 176
20-94 It is expected that any interim award of costs will reflect a conservative estimate of what the
Court considers is likely to be awarded following separate proceedings for a cost decision.
The Court can also attach conditions to the interim award. Since the rules are silent, the
decision will have to state by when the award is payable and could also state how the
payment is to be made, for example, specifying payment in instalments.
20-95 Interim awards of costs are also referred to as one of the provisional measures in r.211(1) RoP.
Such awards can therefore be ordered on the application for provisional measures and possibly
also as provisional measures in themselves. 177
Separate Proceedings for a Cost Decision
20-96 If the current practice in many national courts is followed, the parties are likely to settle the
payment of costs before separate proceedings are started. However, there is a tight timetable
to follow before the Court and this, together with the fact that in the first few years there will be
so many questions as to what costs will be reimbursed by the Court, indicates that there may
be more cost decisions started than is usual in national systems.
20-97 The successful party (or the party that has been mainly successful) must commence separate
proceedings for a cost decision within one month after service of the decision on the merits.
R.151(a) to (e) RoP states that the application for a cost decision lodged by the successful party
must contain:
–
Particulars in accordance with r.13(1)(a) to (d) i.e., the names and addresses of both parties
and their representatives, although these should be known to the Court by this stage;
–
The date of the decision and the action number of the file;
–
A statement as to whether the decision on the merits is the subject of an appeal, if known at
the date of the application;
–
An indication of the costs for which compensation is requested, which may include recovery
of court fees and costs of representation, of witnesses, of experts, and other expenses; and
–
The preliminary estimate of the legal costs that the party submitted previously pursuant to
r.118(5) RoP. 178
20-98 R.152(3) RoP states that where a claim, counterclaim, application, request or appeal subject to
only a fixed fee is made the party concerned shall, in the first submission, assess its respective
value for the purpose of calculating the applicable ceiling. 179 However, in many cases, the judgerapporteur will already have decided the value of the proceedings for the purpose of applying
the scale of ceilings for recoverable costs 180 at the interim conference and this must be the
starting place for the assessment. There may be additional applications and proceedings which
did not form part of that assessment and these must be considered at this stage and addressed
by the successful party in its first submission in addition to those matters referred to in r.151
175
176
177
178
179
180
r.150(2) RoP.
r.119 RoP.
See chapter 16 (Provisional and Protective Measures) paragraphs 16-19 for further discussion of this point.
See paragraph 20-91.
r.152(3) RoP.
r.104(j) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 413
