UPC CoA, 12 may 2025, Ballino v Kinexon: appeal devoid of purpose due to litigation strategy - cost allocation
08-07-2025 Print this page
Admissible appeal against security for costs order brought together with the appeal against the order on provisional measures (R. 220.2 RoP).
“Decision” in R. 220.2 RoP also includes “orders” so that an appeal against a security order is admissible when brought together with an appeal against an order where an action is adjudicated.
No withdrawal of the action by Ballino (R. 265 RoP). It requests that the security order be reversed and that the main order be set aside and reversed in relation to the cost decision.
Action has become devoid of purpose and there is no longer a need to adjudicate on it (R. 360 RoP) after Ballino has withdrawn its request for provisional measures (injunctions, seizure of goods and penalties) on appeal, save for the appeal on security for costs.
Cost Allocation (Article 69 UPCA, R. 360 RoP).
Disposal of an action pursuant to R. 360 RoP can include a decision on who shall bear the costs; the review can be marginal.
Unsuccessful party: party that withdraws the main requests and took the inherent risk in its procedural strategy that the urgent interest in the requests fell away before a final order was rendered must considered as the unsuccessful party and consequently be held to bear the costs of the proceedings. An exception to this may apply where it has been established that the impugned order is based on manifest errors. Where a party, on the other hand, withdrew its requests for lack of urgent interest before a (final) order in the action was rendered, caused by circumstances it could not reasonably have foreseen, and not due to a materialisation of an inherent and foreseeable risk of a deliberate procedural strategy, equity may require a different allocation of costs.
