A guide to the UPC and the UP - Flipbook - Page 335
– Where a statement of fact is not specifically contested, it shall be taken as true between
the parties; 53
– A party has a duty to produce evidence in support of a statement of fact made by it that is
contested or likely to be contested; 54 and
– The Court may at any time during the proceedings order a party making a statement of fact
to produce evidence that lies in the control of that party. 55
17-32 These rules do not actually state when, other than when ordered by the Court, a party must
produce evidence. However, the provisions for what must be included with the SoC state that it
must include: 56
– The evidence relied on, where available; and
– An indication of any further evidence which will be offered in support.
17-33 This wording is common to all the rules listing the necessary contents of the various written
pleadings. 57 Therefore, a claimant lodging a SoC must also lodge evidence, where it is available,
to support any facts it has made which are likely to be contested in the SoD. This will require the
claimant to anticipate what the defendant is likely to contest.
17-34 As a practical matter, the RoP require that documents, including witness statements, 58
referred to in a written pleading are listed in that pleading and a copy of each is provided at the
same time as the written pleading. 59 Whilst not expressly mentioned by the RoP, any available
written report of a party’s expert or report on experiments can presumably be treated in a
similar manner, i.e. submitted alongside a party’s written pleadings. In practice, the pleading
and all evidence accompanying it will be uploaded to the Case Management System as separate
documents on the day they are submitted, subject to any confidentiality claims. 60 Where the
evidence is not available, the claimant must indicate what further evidence (or means of
evidence) will be offered in support to prove the statement of fact. The RoP do not specify how
much detail must be provided when indicating the “further evidence which will be offered in
support”, for example whether witnesses and experts must be individually named or whether
it is sufficient to indicate the broad category of evidence which will be relied upon, e.g. witness
evidence, expert evidence or experiments. Further guidance will be required from the Court in
relation to this issue, particularly since where a party later seeks to rely on evidence that was
not included with, or the means were not indicated in, its written pleadings, the Court will take
such failure into account when deciding the issue in question. 61
Strategic Considerations
17-35 Parties will need to consider carefully what evidence should be produced under each of the two
limbs for their written pleadings. A party which presents all its evidence upfront in the written
procedure will give the opposing party the opportunity to respond to the evidence in its written
pleadings and construct its case to take account of the evidence put forward. If the filing of the
evidence is delayed, the party could have the benefit of seeing its opponent’s written pleadings
before actually producing that evidence. This assessment of when a party should deploy its
evidence will depend on the case, the nature of the evidence and the requirements of the RoP.
53
54
55
56
57
58
59
60
61
r.171(2) RoP.
r.172(1) RoP.
r.172(2) RoP.
r.13(1)(m) RoP.
See for example r.24(e) and (f) in relation to a SoD.
See for example r.13(1)(q) RoP.
See for example r.13(2) RoP.
See chapter 12 (Written Procedure) paragraphs 12-47 to 12-49.
rr.171(1) and 172(2) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 325
