Casalonga UPC rules of procedure
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Rule 357Decision by default (Court of Appeal)

1. Rules 355 [1] and 356 [2] shall apply mutatis mutandis, in particular where a respondent on whom a Statement of appeal and a Statement of the grounds of appeal have been duly served fails to lodge a Statement of response or where a party fails to file a Reply to a Statement of Cross-Appeal or translations ordered by the judge-rapporteur.

2. When considering whether to give a decision by default, the Court of Appeal may consider the merits of the appeal.

3. Rules 355 [3] and 356 [4]shall apply Rule 355 – Decision by default (Court of First Instance) where the appellant fails to correct the deficiencies or to pay the fee pursuant to Rule 229.4 [5] or to lodge the translations pursuant to Rule 232.1 [6] within the period specified.
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[1-
1. Upon request a decision by default may be given against a party where:
(a) the Rules of Procedure so provide if a party fails to take a step within the time limit foreseen in these Rules or set by the Court; or
(b) without prejudice to Rules 116 and 117, the party which was duly summoned fails to appear at an oral hearing.
2. A decision by default against the defendant of the claim or counterclaim may only be given where the facts put forward by the claimant justify the remedy sought.
3. A decision by default against the defendant of the claim or counterclaim may only be given where the time limits for the defence to the claim or counterclaim have expired.
4. A decision by default shall be enforceable. The Court may, however:
(a) grant a stay of enforcement until it has given its decision on any Application under Rule 356
; or
(b) make enforcement subject to the provision of security; this security shall be released if no Application is made or if the Application fails.

[2-
1. A party against whom a decision by default has been given may lodge an Application to set aside that decision within one month of service of the decision.
2. The Application to set aside a decision by default shall contain the party’s explanation for the default. It shall mention the date and number of the decision by default. The party shall pay a fee for the Application to set aside the decision by default, in accordance with Part 6. In the case of Rule 355.1(a) the Application shall be accompanied by the step the party has failed to take.
3. If the provisions of paragraph 2 are met the Application shall be allowed unless a party has been put on notice in an earlier decision that a further decision by default shall be final. If the Application is allowed, a note of allowance shall be included in any publication of the decision by default.
Relation with Statute: Article 37

[3-
1. Upon request a decision by default may be given against a party where:
(a) the Rules of Procedure so provide if a party fails to take a step within the time limit foreseen in these Rules or set by the Court; or
(b) without prejudice to Rules 116 and 117 , the party which was duly summoned fails to appear at an oral hearing.
2. A decision by default against the defendant of the claim or counterclaim may only be given where the facts put forward by the claimant justify the remedy sought and the procedural conduct of the defendant does not preclude to give such decision.
3. A decision by default against the defendant of the claim or counterclaim may only be given where the time limits for the defence to the claim or counterclaim have expired and thus, it is established that the service of the claim or counterclaim was effected in sufficient time to enable the defendant to enter a defence.
4. A decision by default shall be enforceable. The Court may, however:
(a) grant a stay of enforcement until it has given its decision on any Application under Rule 356; or
(b) make enforcement subject to the provision of security; this security shall be released if no Application is made or if the Application fails.

[4-
1. A party against whom a decision by default has been given may lodge an Application to set aside that decision within one month of service of the decision.
2. The Application to set aside a decision by default shall contain the party’s explanation for the default. It shall mention the date and number of the decision by default. The party shall pay a fee for the Application to set aside the decision by default, in accordance with Part 6. In the case of Rule 355.1(a) the Application shall be accompanied by the step the party has failed to take.
3. If the provisions of paragraph 2 are met the Application shall be allowed unless a party has been put on notice in an earlier decision that a further decision by default shall be final. If the Application is allowed, a note of allowance shall be included in any publication of the decision by default.
Relation with Statute: Article 37

[5-
4. If the appellant has not met the requirements of Rules 225, 227 and 228 and fails to correct the deficiencies or pay the fee the Registry shall inform the President of the Court of Appeal who shall reject the appeal as inadmissible by a decision by default. He may give the appellant an opportunity to be heard beforehand.

[6-
1. If the language of the proceedings before the Court of Appeal is not the language of the proceedings before the Court of First Instance, the judge-rapporteur may order the appellant to lodge, within a time period to be specified, translations into the language of the proceedings before the Court of Appeal of:
(a) written pleadings and other documents lodged by the parties before the Court of First Instance, as specified by the judge-rapporteur;
(b) decisions or orders of the Court of First Instance.
The judge-rapporteur shall at the same time inform the appellant that if the appellant fails to lodge the translations within the time period specified, a decision by default may be given in accordance with Rule 357.