A guide to the UPC and the UP - Flipbook - Page 336
17-36 In the case of evidence in the form of pre-existing documents within a party’s control, the
requirement for written pleadings to contain the evidence relied on “where available” suggests,
on the face of it, that a party wishing to rely on this category of documents will need to include
them with its written pleadings. However, it remains to be seen how the Court interprets the
term “where available”, and whether there is any scope for a party to argue that pre-existing
documents were not “available” for the purposes of the litigation. For example, a party may
wish to introduce a document which was within its control at the time its written pleadings were
drafted, but of which its legal representatives only became aware after the pleadings were filed.
The extent to which the Court will consider this document to have been available to the party at
the time it drafted its written pleadings, and any sanction which can be imposed for failure to
include this document with a party’s written pleadings, will need to be decided by the Court.
17-37 Whilst written pleadings must contain the evidence relied on “where available”, it is worth
highlighting the slight, but potentially significant, differences in wording elsewhere in parts of
the UPCA and the RoP dealing with the provision of evidence. For example, art.59(1) UPCA,
which describes the Court’s power to order an opposing party or third party to produce
evidence, 62 provides that the Court may make such an order at the request of a party which has
presented reasonably available evidence to support its claims. The “reasonably available”
wording 63 is also repeated in art.60(1) UPCA (orders to preserve evidence and inspect
premises) 64 and art.61(1) UPCA (freezing orders). 65 In rr.190 and 191 RoP relating to orders to
produce evidence and communicate information, 66 the parties must present “reasonably
available and plausible evidence” in support of their claims. It is not apparent what the
distinction is between “available”, “reasonably available” and “reasonably available and
plausible” evidence and what, if any, affect this distinction could have on the proceedings.
“Reasonably available” could perhaps suggest some form of objective assessment beyond
whether the evidence was actually available to a party, e.g. would the evidence have been
available if that party had been acting diligently? In civil law jurisdictions where saisies exist
under national law, wording is normally used to the effect that, in a request for an order for a
saisie, the applicant can only be required to produce evidence to substantiate such an order
which would be reasonable in the circumstances, as it is obvious that the applicant does not yet
have all the evidence necessary to prove infringement. That is different in the actual litigation,
where all evidence to prove infringement is required in order for the Court to be able to grant
the claims. This would suggest that the requirement may be applied flexibly depending on the
circumstances and the type of order sought.
17-38 A party will have to decide whether any written witness statements, expert reports and reports
on experiments are prepared and lodged with its written pleadings or whether preparation is
delayed until after the written pleadings have been lodged. It is unlikely that expert evidence or
other witnesses’ evidence would be considered to be “available” to a party if the individual who
will give that evidence has not yet been identified by a party at the time it lodges its pleadings.
In contrast, it seems reasonably likely that expert reports and witness statements, which had
already been finalised by the date of lodging, would be considered to be “available”. What is less
clear is how the Court would view the availability of evidence from experts or witnesses who
had already been identified by the parties and who were available to give such evidence by the
time the pleadings were filed, but where the evidence had not yet been drafted. This is one of
the provisions where there may initially be different approaches taken by different divisions
reflecting the legal traditions of the national courts. Witness statements and written expert
reports are commonly accepted as evidence, although their truth and relevance may of course
be contested. In the common law jurisdictions (e.g., Ireland) is it usual to cross-examine
witnesses and experts, and failure to do so is taken as acceptance of the statement or report.
62
See chapter 18 (Orders to Produce Evidence Including “Saisies”) paragraphs 18-86 to 18-106.
The “reasonably available” wording is also used in art.6(1) Enforcement Directive.
64
See chapter 18 (Orders to Produce Evidence Including “Saisies”) paragraphs 18-11 to 18-83.
65
See chapter 16 (Provisional and Protective Measures) paragraphs 16-17, 16-18 and 16-38.
66
See chapter 18 (Orders to Produce Evidence Including “Saisies”) paragraphs 18-86 to 18-106 and 18-107 and 18-114.
63
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 326
