Security for Costs and the Trap of Erroneous Appeal Instructions at the CoA
The Court of Appeal confirms that a lower court's erroneous citation of appeal rules does not excuse a party who recognizes the error. An appeal filed without the required leave was rejected as entirely inadmissible.
The procedural mechanics of appealing discretionary orders at the Unified Patent Court have generated a strict body of case law, particularly regarding the necessity of explicit leave to appeal under Rule 220.2 RoP. The Court of Appeal's order in UPC-COA-0000001/2026 pushes this boundary further, confirming that a lower court's erroneous citation of appeal rules does not excuse a party who recognizes the error from following the correct statutory procedure.
The erroneous appeal instruction
The dispute arose from an infringement action brought by KEEEX SAS against Adobe Inc. and several co-defendants over EP 2 949 070. Before the Paris Local Division (UPC_CFI_530/2025), Adobe requested that Keeex provide security for costs of up to €5,000,000. The Court of First Instance ordered Keeex to provide a bank guarantee of €50,000.
Crucially, the operative part of the Paris Local Division's order stated that the decision was subject to appeal under Rule 220.1 RoP — implying an automatic right of appeal. This was legally incorrect. Under Rule 158.3 RoP, orders for security for costs fall under Rule 220.2 RoP, meaning they may only be appealed together with the final decision or with the explicit leave of the Court of First Instance.
Adobe filed an immediate appeal without seeking leave. In their statement of appeal, they explicitly noted that the lower court's reference to Rule 220.1 appeared to be an error and that Rule 220.2 applied. When the admissibility of the appeal was questioned, Adobe argued that it would be inequitable to penalize them for the lower court's mistake, suggesting they had taken the most reasonable path given the tight 15-day deadline.
Knowledge negates excusable error
The Court of Appeal was unpersuaded. The panel emphasised that an authorization to appeal under Rule 220.2 RoP must be expressly granted by the Court of First Instance and cannot be presumed (reasons 17). While the Court of Appeal acknowledged it had previously accepted exceptions to strict deadline rules where a court's ambiguous instructions caused genuine confusion — citing the AIM v. Supponor decision — it distinguished the present facts entirely.
Because Adobe explicitly pointed out the erroneous reference to Rule 220.1 in their own appeal brief, the panel concluded they were not victims of any confusion attributable to the court. The panel held that the appeal is rejected as being entirely inadmissible, reasoning that initiating the appeal without first respecting the provisions of Rule 220.2 RoP must be considered attributable to the appellants and not an excusable error (reasons 26).
Obiter guidance on cost ceilings
Although the appeal was inadmissible, the Court of Appeal provided notable obiter guidance on the substantive application of Rule 158 RoP. The panel reiterated that the relative financial position of the claimant compared to the defendant is not a criterion for security for costs, particularly when low funding is a deliberate decision (reasons 33).
Instead, the panel clarified that a security should be fixed according to the scale of recoverable costs ceilings. For a dispute value exceeding €50,000,000, the ceiling is €2,000,000. This baseline should then be weighted according to the specific circumstances of the case, such as the claimant's status as an SME and potential synergies between the multiple defense teams involved.
Practical implications
This order establishes a rigorous standard for procedural diligence. Practitioners cannot rely on a "safe harbor" of following a lower court's erroneous instructions if they possess the legal knowledge to identify the error.
When faced with an order that incorrectly cites an automatic right of appeal under Rule 220.1 RoP for a matter that statutorily requires leave under Rule 220.2 RoP, the correct course of action is to formally request leave from the Court of First Instance within the 15-day window. Pointing out the lower court's error in a direct appeal brief will not save the appeal; ironically, as this case demonstrates, demonstrating that you spotted the error is precisely what destroys the defense of excusable confusion.