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13-20 The judge-rapporteur may direct and hold preparatory discussions with witnesses and experts,
although this will always be in the presence of the parties. 51 The aim of such meetings is to
prepare properly for the oral hearing, and will involve identifying which issues are in dispute
and which are agreed or irrelevant and identifying whether a witness or expert is able to speak
to the issues in dispute. The judge-rapporteur could also potentially go as far as discussing
preliminary issues with the witnesses and/or experts with a view to deciding these prior to
the oral hearing.
13-21 The Court’s website has confirmed that there will be no cross-examination of witnesses
or experts during the interim procedure 52 and the discussions themselves are not evidence,
as hearing the witnesses can only be done by the panel during the oral hearing.
However, the parties may be wary of allowing their witnesses or experts to attend such
discussions as the formal safeguards of the witness hearing 53 do not apply. Further, the
witnesses or experts might inadvertently reveal or concede points which are in dispute or are
otherwise influenced by discussing the matter with the judge-rapporteur. Experts and witnesses
might also be asked about matters which the party instructing them has not discussed with
them beforehand, which might have unpredictable results; something that the parties will
wish to avoid.
13-22 The RoP do not contain any rules on discussions between the opposing parties’ experts taking
place without the judge-rapporteur. Such discussions are permitted in the UK, with the aim of
allowing the parties’ experts to identify which issues are agreed between them and which are
in dispute. However, in the UK such discussions are “without prejudice” and therefore cannot
be referred to at trial without both parties’ consent. There are no rules on such discussions in
continental Europe, where this is outside the scope of control of the courts.
13-23 After consultation with the presiding judge, the judge-rapporteur may also direct a separate
hearing of witnesses and experts before the panel. 54 Such a hearing might be used in cases
where there is a heavy reliance on fact and/or expert evidence such that this would otherwise
take up a large proportion of the oral hearing, or where it may be possible to decide preliminary
issues on the basis of fact or expert evidence prior to the oral hearing.
13-24 The Court can appoint a court appointed expert at any time, and one such time might be after
the interim conference. 55 Once the judge-rapporteur has been able to assess the issues in the
case and after discussing the matter with the parties, it may be apparent that a Court expert
would be of assistance in resolving a particular technical question or other related issue. 56
That said, the fact that in the majority of cases, a technical judge will be allocated to the panel
means that the need for a court appointed expert is unlikely to arise other than in cases
involving cutting edge technology.
Exploration of Settlement, Mediation and Arbitration
13-25 The judge-rapporteur may propose at any stage that the parties explore the possibility
of settlement through mediation and/or arbitration using the Mediation and Arbitration
Centre, but has a specific duty to explore the possibility of a settlement with the parties at
the interim conference. 57 In particular, where the prospects of settlement appear favourable,
the Court may defer specified actions in order to give the parties time to negotiate. 58
If the parties attempt to settle the matter through mediation but are unsuccessful, they will
51
52
53
54
55
56
57
58
r.104(f) RoP.
https://www.unified-patent-court.org/en/faq/interim-procedure#faqs [Accessed 14 April 2023].
rr.178 to 179 RoP.
r.104(g) RoP.
r.185 RoP.
See chapter 17 (Evidence) for more information on witness and experts, in particular in relation
to Court appointed experts, paragraphs 17-67 to 17-81.
art.52(2) UPCA and r.11(1) RoP.
r.343(2)(b) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 251
