A guide to the UPC and the UP - Flipbook - Page 338
party wishes to offer oral evidence from that witness, the party will need to make an application
to the Court.
17-46 The RoP appear to put an emphasis on the need for written evidence. In previous versions
of the RoP, the term “may lodge” was used instead of “shall lodge”. This change implies the
preference for written evidence (summoning of witnesses to the oral hearing) rather than
simply relying on live testimony. Correspondingly, r.177 RoP provides that the Court “may”
order that a witness be heard in person, leaving it to the discretion of the Court irrespective
of any application by either party.
Written Witness Statements
17-47 R.170(1) RoP includes “written witness statements” as a means of obtaining evidence.
R.170(2)(h) RoP refers to “sworn statements in writing (written witness statements)” as a
means of obtaining evidence. From the language of r.170(2)(h) RoP it appears that the terms
“sworn statements in writing” and “written witness statements” should have the same meaning.
Rr.175(2) and 175(3) RoP prescribe that written witness statements shall (apart from providing
information that may be relevant as evidence in the proceedings):
– Be signed by the witness;
– Include a statement of the witness that “he is aware of his obligation to tell the truth and of
his liability under applicable national law in the event of any breach of this obligation”; 75
– State in which language the witness will give oral evidence, if necessary;
– State any current or past relationship between the witness and the party offering
the evidence; and
– State any actual or potential conflict of interest that may affect the impartiality of
the witness.
17-48 Affidavits are typically executed under oath or under an affirmation administered by a person
authorised to do so by law. In national litigation, it would need to be determined under the
applicable national law whether, and under what conditions, a written witness statement can be
considered a sworn written statement or affidavit. In the Netherlands, for instance, statements
under oath can be taken by a civil law notary (“notaris”), who will make a record of that
statement in the form of a deed. However, if used as evidence before the Court, it is up to the
Court itself to decide what the value of the evidence is, regardless of requirements that would
apply under national procedural law.
17-49 As to the applicable national law for sanctions against witnesses, it is noted that r.175(2) RoP
does not define which national law is to be applied when assessing the witnesses’ “liability...
in the event of any breach of this obligation”. Certain submissions in the public consultation of
the RoP have suggested that this is unclear and that it should reference the law of the domicile
of the witness. These suggestions have not led to changes: r.175(2) RoP has been drafted in a
deliberately open manner to accommodate national law and practice; both in respect of
execution of the written witness statement and in respect of the legal consequences ensuing
from false statements therein. In any event, sanctions against witnesses for breach of their
obligations will not be imposed by the Court, but by the national courts that have jurisdiction
in such matters, such as the criminal court of the place of domicile of the witness in the event
that the Court decides to report the giving of false evidence by the witness. 76
75
76
Note that r.3.1 of the Code of Conduct for Representatives requires that a representative shall ensure that witnesses are at all
times fully informed about their obligation to tell the truth and of their liability under applicable national law in the event of
any breach of this obligation.
r.179(4) RoP.
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A Guide to the UPC and the UP 328
