A guide to the UPC and the UP - Flipbook - Page 328
The Role of Evidence in Proceedings before the Court
17-01 The RoP govern the procedure for the taking of evidence and the management of that
procedure by a judge-rapporteur. The procedure for submitting evidence in proceedings
before the Court is front-loaded. It will be unfamiliar territory to common law practitioners who
are accustomed to filing evidence much later in the procedural timetable, after the parties have
fully pleaded their respective cases. Practitioners in civil law jurisdictions, however, will be more
familiar with this approach.
17-02 Witnesses and experts can give both written and oral evidence. However, there is no US-style
deposition, as the questioning of witnesses and experts can only be performed under the
control of the Court. There is also no provision for common law-style discovery, whereby the
parties are required to disclose all relevant documents in their control, whether they assist with,
or are adverse to, their case. Instead, provision is made for obtaining evidence through
requests for information and production of documents, either from a party to the proceedings
or a third party. Provision is also made for the continental “saisie” practice (referred in the RoP
as an order to preserve evidence), ordering inspection of a place or a physical object and for
freezing orders to stop a party from removing any assets from its jurisdiction or to stop a party
from dealing with any assets within or outside the jurisdiction. 1
Duties of the Court, the Parties and the Legal Representatives
Duties of the Court
17-03 The UPCA contains a number of high-level principles concerning the duties of the Court in
respect of the evidence before it. These include the following:
– The Court shall deal with litigation in ways which are proportionate to the importance and
complexity thereof. 2
– The Court is required actively to manage its cases without impairing the freedom of the
parties to determine the subject-matter of, and the supporting evidence for, their case. 3
– Decisions on the merits may only be based on grounds, facts and evidence, which were
submitted by the parties or introduced into the procedure by an order of the Court
and on which the parties have had an opportunity to present their comments. 4
– The Court shall evaluate evidence freely and independently. 5
Duties of the Parties
17-04 The RoP require that a party making a statement of fact that is contested or likely to be
contested by the other party, shall indicate the means of evidence to prove it. 6 A party must
therefore assess at an early stage which statements of fact are likely to be contested by the
other party, and consider appropriate means of evidence to prove those statements. Failure
to indicate the means of evidence regarding a contested fact will be taken into account by the
Court when deciding the issue in question. 7
1
2
3
4
5
6
7
All these procedures for obtaining evidence are discussed in more detail in chapter 16 (Provisional and Protective Measures)
and chapter 18 (Orders to Produce Evidence Including “Saisies”).
art.42(1) UPCA.
art.43 UPCA.
art.76(2) UPCA.
art.76(3) UPCA.
r.171(1) RoP.
r.171(1) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 318
