Progress Machinen & Automation v AWM & Schnell (UPC_CFI_286/2023)
Decision date:
08 April 2024
Osborne Clarke summary
- PMA filed two ex parte applications for preserving evidence and inspection against AWM and Schnell. The Milan LD granted both of these orders, which were executed on 17 October 2023.
- Accordingly, the thirty-day period prescribed by Rule 197 RoP for the timely submission of a request for review of the order expired on 16 November 2023.
- Neither AWM nor Schnell applied to review the order, nor did the parties appeal. Furthermore, PMA did not bring an action on the merits against AWM and/or Schnell.
- On 16 February 2024, PMA filed a request for access to the expert report, arguing that knowledge of the content of the reports and their annexes were absolutely essential in order to assess whether or not to commence proceedings on the merits against AWM and Schnell. In response, AWM and Schnell requested that the court revoke the provisional measures and for them to cease to have effect, in accordance with Article 60(8) UPCA and Rules 198.1 and 199.2 RoP.
- Article 60(8) UPCA and Rules 198.1 and 199.2 RoP expressly provide that the court shall ensure that the measures to preserve evidence and the orders for inspection are revoked or otherwise cease to have effect, at the defendant’s request, without prejudice to the damages which may be claimed, if the applicant does not bring proceedings on the merits within a period not exceeding 31 calendar days or 20 working days (whichever is longer).
- In view of the facts, and in particular of PMA's failure to comply with the statutory time limit laid down in Article 60 UPCA and Rules 198.1 and 199.2 RoP, the Milan LD declared that all the measures were revoked and therefore no longer had any effect.
Issue
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