A guide to the UPC and the UP - Flipbook - Page 343
have already worked with but there is no official list of such persons. 105 Although the restriction
that Court experts be limited to technical experts has been removed since the 16th draft RoP,
r.185(9) RoP has not correspondingly been amended. Instead, it was expressly decided that the
list of experts should be limited to technical experts. The reasons for this decision are assumed
to be purely practical: first of all, it is probably the case that technical expertise will be needed
much more frequently than other types of expertise. Secondly, while technical experts can be
divided by topic (such as biology, chemistry, physics, engineering and so on), when expertise
other than technical expertise is needed the question to be solved is often highly specific and it
may not be possible to categorise such experts in the same way. Although not expressly stated
in the RoP, the fact that this list is “indicative” suggests that the technical expert appointed does
not necessarily need to be selected from the maintained list, and the Court may follow
something similar to current German practice whereby judges can make official requests to
professional organisations, which may be able to recommend an individual or individuals with
relevant expertise.
17-71 R.185(1) RoP gives the parties a right to be heard in relation to the appointment of a Court
expert. The parties may make suggestions regarding the identity of the expert, the expert’s
technical or other relevant background, and the questions to be put to the expert. 106 During the
public consultation of the RoP the opinion was expressed that the parties are better suited for
choosing an expert since they usually have a better knowledge of experts in their field as well
as possible conflicts of interest. A right to object to the appointment of an expert was also
discussed during the public consultation of the RoP. 107 The Drafting Committee did not follow
that suggestion. Instead, it amended the rules to provide a right for the parties to be heard on
the “expertise, independence and impartiality” of the court expert. 108
17-72 Unlike the practice in Germany where it is stipulated that the court is bound by the parties’
common choice of an expert, 109 the RoP do not explicitly provide the opportunity for the parties
to agree on a court appointed expert. By contrast, the wording of r.185 RoP suggests that even
if the parties have agreed upon an expert, the Court would still have discretion to appoint a
different person, although it would be generally expected to explain to the parties why it had
rejected a particular expert they had agreed upon.
17-73 Ultimately, it seems that the Court will have the final say in whether a Court expert will be
appointed, which expert will be appointed and what questions will be put to the expert
(subject to any appeal of the Court order under r.220(2) RoP). 110 The Court is also responsible
for providing the expert with all the information necessary for the provision of expert advice 111
and it is not clear whether the parties are able to have any input into that decision.
17-74 R.185(4) RoP sets out the content of the Court order appointing the expert. Besides general
information, such as the name and address of the expert and a short description of the facts
of the action, the order shall also contain:
– The evidence submitted by the parties in respect of the technical or other questions;
– The questions put to the expert with the appropriate level of detail, including where
appropriate suggestions relating to any experiments to be carried out; 112
105
106
107
108
109
110
111
112
However, German procedural law provides for publicly appointed experts, who have been appointed for certain types of
reports. Under German law, if a publicly appointed expert is available, another expert may only be selected if particular
circumstances so require.
r.185(2) RoP.
See the IP Federation submission to the RoP consultation, p.11,
http://www.ipfederation.com/document_download.php?id=1841 [Accessed 25 April 2023].
r.185(3) RoP.
s.404(4) German Code of Civil Procedure.
Evidence and appeals are covered in chapter 21 (Procedure before the Court of Appeal).
art.57(1) UPCA and r.185(5) RoP.
Experiments are discussed in paragraphs 17-95 to 17-114.
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A Guide to the UPC and the UP 333
