A guide to the UPC and the UP - Flipbook - Page 424
RoP. In making his assessment, the judge-rapporteur will take into consideration the Guidelines
on the ceiling of recoverable costs. 181 The other party has an opportunity to be heard.
20-99 The cost procedure will often run in parallel with any appeal against the earlier decision on
infringement or validity. This can be inferred from the fact that the RoP do not envisage the
stay of the costs procedure pending any appeal, and that r.151(c) RoP explicitly obliges the
parties to inform the Court about a pending appeal. This has the benefit of discouraging a
party from appealing an adverse decision for strategic reasons only, i.e. to obtain a delay in
the payment of costs and so exhaust the financial means of the opponent.
20-100 The judge-rapporteur may ask the applicant to provide written evidence of all its costs i.e.,
those requested in r.151(d) RoP, and must allow the unsuccessful party an opportunity to
comment in writing on the costs requested and any item that should be apportioned or be
borne by each party. 182 The judge-rapporteur will consider the issue of costs in a step-wise
fashion, considering first what costs are recoverable, that is, whether they are reasonable
and proportionate, whether they should be apportioned between issues, whether they were
unnecessary and whether equity demands any other adjustment. Secondly, the judgerapporteur will consider the applicable ceiling and may use it to cap the costs. The applicable
ceiling should not be considered the default level of recoverable costs.
20-101 The judge-rapporteur will make a decision in writing on the costs. Payment must be made
within the time period set by the judge-rapporteur. 183 Any application for leave to appeal has
to be lodged within 15 days of service of the decision and, if leave is granted, the appeal will
be heard by the standing judge. 184
20-102 Claiming legal costs and other expenses relating to a decision for the determination of damages
is identical to that described above.
Security for Costs
20-103 A party may apply for an order for security for costs to offset the injustice that might arise,
particularly where they are defending an action with no real prospect of recovering their costs
even if they are successful. The rules state that either party can apply for security, but it is
likely that the Court will be more concerned with protecting defendants against impoverished
claimants; but security might also be granted to a claimant faced with a counterclaim
(and therefore is effectively in the shoes of a defendant as regards the counterclaim).
Early applications for security for costs in an action can be used as a tactic to settle litigation,
since the threat can focus the other party’s mind on the merits and costs of a case.
20-104 Under r.158 RoP, a party may, at any time, ask the Court and the Court may grant that the other
party provide adequate security for the legal cost and expenses either already incurred or
which will be incurred in the future and which the other party may be liable to bear. The Court
may order that such security is provided by deposit or by bank guarantee 185 and will specify a
time period within which the party is to give security. If the party does not comply with the
order to give security within that time, the Court may give a decision by default. 186
181
182
183
184
185
186
See Guidelines.
r.156(1) RoP.
r.156 RoP.
rr.157 and 221 RoP.
r.158(1) RoP.
rr.158(5) and 355 RoP. See chapter 11 (Overview of Procedure and General Procedural Provisions) paragraphs 11-144 to
11-155 for the procedure relating to decisions by default.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 414
