A guide to the UPC and the UP - Flipbook - Page 340
17-56 An order to hear a witness should be served in accordance with r.276 RoP and the other
provisions on service which this rule refers to. 82 Witnesses who have been summoned shall
obey the summons and attend the oral hearing. 83
Hearing a Witness
17-57 If a witness provides oral testimony, 84 any questioning is done under the control of the Court
and is limited to what is necessary. 85 R.178 RoP, which describes the hearing of witnesses,
applies equally to witnesses, party experts 86 and court appointed experts. 87
17-58 The witness must first make a declaration affirming that their evidence will be the truth, the
whole truth and nothing but the truth. 88 A witness who has signed a statement will confirm the
evidence given in that statement and is entitled to elaborate on the evidence contained in their
statement. 89 According to r.178(4) RoP the presiding judge and the judges of the panel may put
questions to the witness. R.178(5) adds that the parties may put questions to the witness under
the control of the presiding judge, and the presiding judge has the power to prohibit any
question which is not designed to adduce admissible evidence.
17-59 Witnesses are permitted to refuse to answer questions put to them if answering them would
violate professional privilege or other duties of confidentiality imposed by the national law
applicable to the witness or expose the witness or certain of the witness’s relatives to criminal
prosecution under applicable national law. 90
Duties of the Witness
17-60 Witnesses who are duly summoned and fail to appear before the Court or refuse to give
evidence or make the declaration referred to in r.178(1) RoP 91 (and who do not have a right
to decline giving evidence) 92 risk that the Court may: 93
– Impose a pecuniary sanction not exceeding €50,000; and
– Order that a further summons be served at the witness’s own expense.
17-61 In sending a further summons, the Court may make use of the procedure for sending a letter
of request to the competent national court. 94 In enforcing any pecuniary sanction imposed
on a witness, the Court faces the same issues as it does when enforcing a recurring penalty on
a party for breach of an order. 95
17-62 It appears that if a witness makes a false statement, the Court does not have the power to
impose a pecuniary sanction on them since refusing to make the necessary declaration before
giving evidence is not the same as failing to fulfil it. However, it would be of use to the Court and
in the interests of justice if the Court could impose such a fine. Instead, if a witness perjures
themselves, the Court is entitled to report them to the competent authorities of the Contracting
82
83
84
85
86
87
88
89
90
91
92
93
94
95
See chapter 19 (Enforcement).
r.179(1) RoP.
r.112(3)(b) RoP. The Court may decide to hear a witness through electronic means such as a video conference.
art.53(2) UPCA. See also chapter 14 (Oral Procedure) paragraphs 14-33 to 14-41.
r.181 RoP. See paragraphs 17-81 to 17-89.
r.188 RoP. See paragraphs 17-67 to 17-80.
r.178(1) RoP.
r.178(3) RoP.
r.179(3) RoP.
See paragraph 17-58.
See paragraph 17-59.
r.179(2) RoP.
r.173 RoP. See paragraphs 17-15 to 17-23.
See chapter 19 (Enforcement) paragraphs 19-32 to 19-45.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 330
