Lionra v Cisco (UPC_CFI_58/2024)

• This decision concerned costs assessments and time limits. Cisco requested an extension of the deadline to submit a cost assessment application under Rule 151 RoP, which was initially missed due to an oversight in docketing the deadline by its legal team.
• Cisco argued that the missed deadline was due to an error by a reliable legal secretary who failed to note the deadline in their tracking system. It highlighted that its law firm had a robust system for monitoring deadlines, including a four-eyes principle where deadlines are checked by two staff members. Despite this, the deadline was not recorded, and Cisco only became aware of the issue when the opposing party submitted its cost assessment application. Cisco requested a retroactive extension under Rule 9.3(a) RoP or alternatively sought re-establishment of rights under Rule 320 RoP.
• The Hamburg LD rejected Cisco's request for a retroactive extension of the deadline. It explained that while Rule 9.3(a) RoP allows for deadlines to be extended retroactively, this applies only to decisions made on timely filed extension requests. Since the request was made after the deadline had passed, it could not be granted.
• The Hamburg LD was clear that if a time limit provided for in the RoP or set by the Court of First Instance has been missed, a party has no choice but to file an application for re-establishment of rights under Rule 320 RoP (provided that none of the non-extendable time limits are affected). Under Rule 320.1 RoP, the court may grant re-establishment of rights to a party who, despite all due care, has failed to meet a time limit under the RoP or set by the Court of First Instance for a reason beyond their control and they have lost a right or an appeal as a direct consequence.
• The exact meaning of "all due care" and what amounts to a reason beyond their control is not set out in the RoP. The Hamburg LD held that these terms must be interpreted autonomously (that is, without reference to German law, the practice of the EPO or the case law of the CJEU). Therefore, "all due care" is generally observed if the party has taken all reasonable precautionary steps to comply with the deadline. In terms of circumstances outside of a party's control, the court will deem the conduct of a party's representative to be attributed to the party. This means that a lack of supervision, instruction or selection of salaried employees can also be attributed as conduct of the party without all due care.
• In this instance, the Hamburg LD did grant Cisco's request for re-establishment, acknowledging that that it had taken reasonable precautions to avoid any errors. As a result, Cisco was allowed to proceed with its cost assessment application despite the initial oversight. The court emphasised the importance of maintaining a diligent system for tracking deadlines but recognised that errors can occur even in well-monitored systems.

This analysis is based on a machine translation of a decision not available in English.