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– Conducting comparative tests and experiments; 25 and
– Sworn statements in writing (the UPCA refers to “affidavits”, the RoP refer to “written witness
statements”). 26
17-13 In addition to the above list of eight categories, r.170(3) RoP includes a further two means
of obtaining evidence, namely:
– Ordering a party or third party to produce evidence; 27 and
– Ordering measures to preserve evidence. 28
17-14 To complete the list, the RoP include a few other methods for obtaining evidence:
– In the context of damages proceedings, ordering the laying open of books; 29
– Orders to freeze assets. 30 Although they are included in the “Evidence” section of the RoP,
the purpose of these orders appears to be to ensure that assets are not removed from a
particular jurisdiction to avoid enforcement of a Court judgment against those assets; 31 and
– Taking of evidence by legal requests (“letters rogatory”). 32
Letters of Request
17-15 In general civil or commercial matters, letters of request, also referred to as letters rogatory,
provide a procedure for obtaining witness or documentary evidence from an individual located
outside a court’s jurisdiction who is unwilling to provide the evidence voluntarily.
17-16 R.173 RoP provides for the judicial cooperation in the taking of evidence:
– In relation to a Member State, by any method provided by the Evidence Regulation; 33
– In relation to a third (i.e. non-EU) State, by any method provided by the 1970 Hague Evidence
Convention; 34 and
– In relation to a national court of the same Contracting Member State where the division is
located, or where the requested court is a court of a third State not bound by any agreement
or convention, by any method provided by national law where the division requesting the
evidence is located.
Evidence Regulation
17-17 With the exception of Denmark, the Evidence Regulation applies to cross-border requests for
judicial cooperation between Member States. Under the Evidence Regulation, a request
25
26
27
28
29
30
31
32
33
34
r.201 RoP. See paragraphs 17-95 to 17-114.
See paragraphs 17-47 to 17-51.
r.190(1) RoP, see also rr.9(1) and 172(2) RoP. See chapter 18 (Orders to Produce Evidence Including “Saisies”) paragraphs
18-86 to 18-106.
rr.192 to 198 RoP. See chapter 18 (Orders to Produce Evidence Including “Saisies”) paragraphs 18-11 to 18-83.
r.141 RoP. See chapter 15 (Remedies) paragraphs 15-83 to 15-91.
art.61 UPCA and r.200 RoP.
They are therefore considered within chapter 16 (Provisional and Protective Measures) paragraphs 16-17, 16-18 and 16-38.
r.173 RoP.
Regulation (EU) No.2020/1783 on cooperation between the courts of the Member States in the taking of evidence in civil
or commercial matters (taking evidence) (recast) (OJ No. L 405, 2.12.2020, p.1).
“Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters”, available at
https://www.hcch.net/en/instruments/conventions/full-text/?cid=82 [Accessed 25 April 2023].
© Bird & Bird LLP | May 2023
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