OrthoApnea & VIVISOL v [Redacted] (UPC_CFI_131/2025)
Decision date:
25 July 2025
Osborne Clarke summary
- Following proceedings between the parties, OrthoApnea filed an application for payment of costs pursuant to Rule 151 RoP. The application sought an order that the defendant/respondent pay the costs of the proceedings, estimated at €92,814.62, to be increased by statutory commercial interest from seven days after service of the decision.
- OrthoApnea argued that decision of the Administrative Committee on the ceiling of recoverable costs (€38,000) was in "stark contrast" to the actual costs incurred and therefore the ceiling should be increased. The costs proceedings were ultimately stayed pending an appeal decision on the merits by the Court of Appeal. The respondent sought for the costs proceedings to be resumed. The Brussels LD confirmed that the proceedings should be resumed and that OrthoApnea should be regarded as the "successful party" in light of the Court of Appeal's decision.
- The Brussels LD confirmed that an increase (or decrease) of the recoverable costs ceiling should be requested as soon as possible in the proceedings and that a request made during the costs proceedings should generally be considered late. In this case, OrthoApnea should have known the complexity of the proceedings and multi-language requirements therefore could have argued for a higher ceiling at the start.
- The court also noted that it has a high degree of discretion in making use of the following "safeguards": i) costs (including representation costs) should be reasonable and proportionate for the successful party to claim them; ii) in applying the general rule (that the unsuccessful party pays), the legal principle of equity should be used; iii) in cases of partial success or in exceptional cases, the court may order parties to bear their own costs (or part of them); and iv) unnecessary costs for the court or party should be borne by the party that caused them, which may imply that a successful party may be order to (re)pay those costs.
- Elements that can be taken into account to increase the ceiling include the complexity of the case and the multilingualism of the proceedings. When requesting an increase, the requesting party should (to a certain extent) take into account the financial position of the all the parties and the principle of the right of access to a fair trial. Elements that be taken into account to reduce the ceiling include the (economic) survival of the applicant party if the ceiling is applied. The court would have to take into account the procedural conduct of the party, the ceiling in comparison to the annual turnover of both parties, the economic activity of both parties and the effect that a reduction would have on the other party (i.e. the successful party).
- The Brussels LD held that claimed costs are considered "facts". If they are disputed then it is up to the claimant to adduce evidence to support the alleged "fact". The standard of proof is no different from or lower than that applicable to other "facts" submitted in the course of UPC proceedings.
- In this case, OrthoApnea failed to provide evidence for a higher costs ceiling. In relation to representation costs, OrthoApnea's argument that providing additional evidence to prove the costs were actually incurred would be "unprecedented" in Dutch practice was given short shrift. The court noted that they were not in Dutch practice but in the UPC and the burden and standard of proof is clear in the UPCA and the RoP.
Issue
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