1. Key takeaways
Admissibility of Appeals
An appeal against an order for security of costs, brought together with an appeal against an order on provisional measures remains admissible, even if the request has become devoid of purpose (here because the appellant has later made it clear that it no longer requests provisional measures). The appellant retains a legal interest in challenging the security order.
Costs and Calculated Risks
Parties relying on time-limited events to justify urgency for provisional measures take the risk of those events ending before a decision issues so that the party lacks urgent interest in the requested measures and the request must be rejected.
If the request is therefore withdrawn after the event ended, it is thus clear that – had the request not been withdrawn – it would have been rejected for the lack of urgent interest. Therefore, the applicant must be considered the "unsuccessful party" and thus liable for costs. Therefore, it is of particular relevance to strategically assess the timing of events and associated risks when pursuing provisional measures.
Exception for Unforeseeable Events
If urgency ceased, and the applicant therefore withdrew its request, due to unforeseen circumstances beyond the party's control before a (final) order was rendered, equitable cost allocation may be considered, deviating from the general rule. This nuanced approach acknowledges that unforeseen events can disrupt litigation strategy, and fairness may require a different cost outcome.
2. Division
UPC Court of Appeal, Panel 2
3. UPC number
UPC_CoA_328/2024
APL_36389/2024
4. Type of proceedings
Appeal proceedings against an order for security for costs
5. Parties
Appellant:
Ballinno B.V.
Respondents:
1. Kinexon Sports & Media GmbH
2. Union des Associations Européennes de Football
(UEFA)
3. Kinexon GmbH
6. Patent
EP 1 944 067
7. Body of legislation / Rules
R. 158, 202.2, 360 RoP, Art. 69 (1), 73 (2) (b) UPCA
UPC_CoA_328 2024 – May 12 2025 – CoA Download
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
