A guide to the UPC and the UP - Flipbook - Page 453
Referral back to the Court of First Instance
21-89 The wording of art.75(1) UPCA suggests that the discretion of the Court of Appeal to refer a
decision back to the Court of First Instance is only to be exercised in exceptional circumstances.
Where the Court of Appeal does decide to refer a case back, art.75(2) UPCA sets out that the
Court of First Instance will be bound by the Court of Appeal’s decision on points of law.
R.243(2) RoP further expands on this in stating that the Court of First Instance will be
bound by “the decision of the Court of Appeal and its ratio decidendi”, suggesting that
all factual assumptions leading to the appellate decision cannot be changed by the
Court of First Instance either.
21-90 In a decision referring the case back to the Court of First Instance, the Court of Appeal
must also state whether the same judicial panel which considered the case originally
at first instance should consider it again, or whether another panel should be appointed
by the presiding judge of the division concerned. 173 The inclusion of the reference to the
division concerned suggests that a referral back will always be to the same division of the
Court of First Instance.
Enforcement of Decisions
21-91 The same provisions apply in relation to the enforcement of decisions of the Court of
Appeal as to decisions of the Court of First Instance. Therefore, art.82(1) UPCA requires
that an order for enforcement is appended to any decision of the Court of Appeal and,
pursuant to art.82(2) UPCA, any decision by the Court of Appeal may be subject to the
provision of security. 174 However, since Court of Appeal decisions will in many instances
be final in nature, a security will typically not be required. Only where a decision relates
to the appeal of an order, such as a provisional injunction, would the Court of Appeal
need to consider whether enforcement should be contingent on providing security.
Rehearing
Request for a Rehearing
21-92 There are two exceptional circumstances in which the Court of Appeal may acquiesce to
a request for a rehearing after a final decision of the Court has been handed down:
–
In instances where a national court has made a final decision that an act constituted
a criminal offence and a new, previously unknown fact that has the potential to be
“a decisive factor” comes to light; 175 or
–
Where there was “a fundamental procedural defect”. This term is not defined in the UPCA,
but examples are provided for in art.81(1)(b) UPCA and r.247 RoP (such as the case where
a defendant that did not appear before the Court was not properly served with the relevant
document initiating proceedings). 176
21-93 Under art.81(2) UPCA, any request for a rehearing must be made within two months of the
discovery of the new fact 177 or the fundamental procedural defect, 178 and must be made within
10 years of the date of the original decision of the Court. In practice, the two month time limit
is the deadline which is most likely to scupper a party’s wishes to apply for a rehearing.
173
174
175
176
177
178
r.243(1) RoP.
For further details on enforcement of decisions and the provision of security, see chapter 19 (Enforcement).
art.81(1)(a) UPCA.
art.81(1)(b) UPCA.
r.245(2)(b) RoP states that the time starts to run from the date of which the criminal offence has been so held.
r.245(2)(a) and (b) RoP both add “or service of the final decision, whichever is the later”.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 443
