A guide to the UPC and the UP - Flipbook - Page 339
Written Summary of Evidence
17-50 As an alternative to a written witness statement, parties who are seeking to offer witness
evidence can give a written summary of evidence. 77 The RoP provide very limited guidance on
the form and content of a written summary; the only requirements for such a summary is that
it should set out any current or past relationship between the witness and the party offering
the evidence, and any actual or potential conflict of interest that may affect the impartiality of
the witness. 78 In order to be able to fulfil these requirements, it seems that the identity of the
witness must at least be known to the party filing the summary, even though on the face of it,
it does not appear from the rules that the summary needs to disclose the identity of the
witness. It is unclear how much detail must be included in the written summary of evidence. 79
17-51 Under the RoP, it appears that the parties can elect whether to lodge a written witness
statement or a written summary of evidence. However, unlike a written witness statement, a
written summary of evidence is not considered a means of obtaining evidence under r.170(2)
RoP. The Court is not required to hear a witness upon an application of a party and, therefore,
if the party can provide a witness statement rather than a written summary, it would seem
desirable to do so.
Application for the Hearing of a Witness in Person
17-52 A party that wants to offer oral witness evidence shall, in addition to the requirements of r.175
RoP, make an application to the Court for a hearing of a witness in person, stating: 80
– The reasons why the witness should be heard in person;
– The facts which the witness is expected to confirm; and
– The language in which the witness will give evidence.
17-53 A witness may give evidence in a language other than the language of proceedings, but only if
consent is given by the Court. 81 For such situations it may be prudent if the application for the
witness hearing should not merely state the witnesses’ language, but also comprise a request to
allow him to give evidence in that other language.
17-54 Pursuant to r.177(1) RoP, the Court may order that a witness is heard in person:
– Of its own motion;
– Where a written witness statement is challenged by the other party; or
– On an application by a procedural party.
17-55 Rr.177(2) and 177(3) RoP formulate requirements for the content of the Court’s order
summoning the witness. These come on top of those generally formulated in r.351 RoP for
all orders of the Court. The full list of requirements is not reproduced here, but it includes
an indication of the facts of the action about which the witness is to be examined as well as
informing the witness of their rights and duties.
77
78
79
80
81
r.175(1) RoP.
r.175(3) RoP.
English procedure allows for such summaries – see Civil Procedure Rules, Part 32.9, considered in Scarlett v Grace [2014]
EWHC 2307 (QB). However, witness summaries are not an aspect of English patent litigation procedure.
r.176 RoP.
r.178(6) RoP; r.112(6) RoP on the conduct of the hearing provides an identical rule.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 329
