UPC CoA, 12 July 2025: Infringement action dismissed for failure to provide security for costs
05-10-2025 Print this page
Impugned order revoked and decision by default dismissing the infringement action given against Suinno for failure to provide security for costs (R. 355.2 RoP, R. 158.5 RoP).
Decision by default of R. 355.2 RoP only applies when a decision by default is sought "against the defendant of the claim".
It does not apply when a decision by default is requested by the defendant against the claimant because the claimant failed to take a step within the time limit foreseen in the RoP or set by the Court or it failed to appear at an oral hearing pursuant to R. 355.1(a) and (b) RoP.
The rationale underlying R. 355.2 RoP is that a decision by default against the defendant by which the Court orders the remedy sought by the claimant or the counter-claimant does not only require that the Court finds that the conditions mentioned in R. 355.1 (a) or (b) RoP are met but also finds that the conditions, that the order of the remedy sought presupposes, are met based on the facts that are put forward by the claimant which justify the claims, providing the procedural conduct of the defendant does not preclude to give such decision.
The effectiveness of security for costs ordered under R. 158 RoP is ensured by the power granted to the Court under RoP 158.5 RoP to give a decision by default if the party bound to provide a security for costs fails to do so. It is only under exceptional circumstances that the Court may derogate from this general rule and the reference to the status quo of the action may not justify such a derogation.
