UPC CFI, LD Munich, 19 May 2025: Costs to borne by defendant who settles in the absence of a warning letter?
16-08-2025 Print this page
No need to adjudicate because of settlement (R. 360 RoP), costs to be borne by respondent (R. 118.5 RoP).
Giving cause for the action to be brought and requirement of a warning letter?
If the obligation to bear the costs in a decision pursuant to Rule 360 RoP depends on whether the defendant gave cause for the action to be brought, the objective view of a person in the position of the plaintiff at the time the action was brought must be taken into account. The question is whether the plaintiff could have assumed at that time that it would not be able to obtain justice without judicial assistance. Even without prior warning and despite an immediate declaration of discontinuance and undertaking after proceedings for interim measures were initiated, the respondent must bear the costs if a prior warning was unnecessary because it would have been futile from the outset or because the warning would have created a risk that the asserted right would have been definitively frustrated before a court decision could be obtained. A warning letter is not a prerequisite for the admissibility or validity of an application for interim measures. Its absence does not automatically negate the urgency of the request. However, its absence may result in the applicant having to bear the costs if the respondent issues a cease-and-desist declaration and undertaking immediately at the beginning of the proceedings. If the respondent has already initiated legal proceedings for an anti-suit injunction or anti-enforcement injunction, a warning letter from the applicant is generally not required before applying for an anti-anti-suit injunction or anti-anti-enforcement injunction, because it can be assumed that the respondent will not comply with it unless there are concrete indications that it will behave differently.
