A guide to the UPC and the UP - Flipbook - Page 337
The Court will, in due course, set rules and best practices in its case law which will assist parties
in presenting the evidence to support their cases.
17-39 However, there may also be risks associated with delaying production of evidence. In a worstcase scenario, a judge-rapporteur could refuse to admit such evidence on the grounds that it
was available but did not accompany the relevant pleadings when they were filed. Under r.9(2)
RoP, the Court has the power to disregard any evidence, which a party has not submitted in
accordance with a time limit set by the RoP or the Court.
17-40 The RoP do not specify when the “further evidence which will be offered in support” must be
provided. Indeed, at any stage of the proceedings, the Court has the power to order a party to
provide evidence within specified time limits under r.9(1) RoP. 67 Given the power under r.104(e)
RoP of the judge-rapporteur at an interim conference to issue orders regarding the production
of further evidence, it is therefore open to the judge-rapporteur to set a deadline for any
further evidence to be filed by the parties at that stage. When setting the deadline for further
evidence, the judge-rapporteur should bear in mind the Court’s duty under art.76(2) UPCA that
the opposing party must have an opportunity to present its comments on the further evidence.
It may therefore be that the Court imposes a very short timeframe for the production of the
further evidence and allows time thereafter for the opposing party to comment on this
evidence. Short deadlines are to be expected, as the judge-rapporteur should strive to finish the
interim procedure within three months. 68
Expert and Witness Evidence
17-41 The type of evidence permissible before the Court includes written and oral evidence from
witness and experts. 69
17-42 The Court exercises supervisory powers over the whole procedure of taking evidence including
the questioning of witnesses and experts. The Court is bound by the general principle of
proportionality established by art.53(2) UPCA, which states that “questioning of witnesses and
experts shall be under the control of the Court and be limited to what is necessary”.
17-43 The rules relevant to witness and expert evidence are divided into two parts; the first part 70
covers the witnesses and experts of the parties and the second part 71 relates to court experts.
Some of the rules relating to the hearing of witnesses, their duties and reimbursing expenses
are common to witnesses, party and court experts, although, the duties of experts are more
burdensome than those for witnesses.
Witness Evidence
17-44 Art.53 UPCA explicitly provides that evidence can be given or obtained by means of the hearing
of witnesses 72 and by means of “sworn statements in writing (affidavits)”. 73 This differs from
German law, whereby witnesses of fact generally give oral evidence (although the German court
may instruct that questions are answered in writing if it believes that it will suffice to proceed in
this manner). 74
17-45 The procedure for the taking of witness evidence is governed by, particularly, rr.175 to 180 RoP.
As a general requirement, r.175(1) RoP states “that a party seeking to offer witness evidence
shall lodge a written witness statement or a written summary of the evidence to be given”. If the
67
68
69
70
71
72
73
74
See also r.172(2) RoP.
r.101(3) RoP.
art.53 UPCA and r.170 RoP.
rr.175 to 181 RoP.
rr.185 to 188 RoP.
art.53(1)(d) UPCA.
art.53(1)(h) UPCA.
s.377(3) German Code of Civil Procedure.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 327
