A guide to the UPC and the UP - Flipbook - Page 346
implement the Court’s power under art.53(2) UPCA to limit the questioning of experts to
what is necessary.
17-84 As mentioned in relation to witness evidence, 120 the RoP appear to put an emphasis
on written evidence, i.e. expert opinions. This is in line with experiences in some other
jurisdictions. For example, in Germany, while official court experts are generally questioned
in the oral hearing after providing a written opinion, party experts are rarely questioned orally.
Instead, the courts prefer to have their respective opinions in writing.
17-85 Other than the specific points discussed, party experts are generally treated like any other
witness, and the rules 121 relating to witnesses are equally applicable to party experts. 122
Duties of Party Experts
17-86 The duties of a party expert witness include those of other witnesses under r.179 RoP. 123
In relation to an expert’s written evidence, the general rules relating to written witness
statements also apply. 124 Amongst others, these rules require that the written statement shall:
– Include a statement of the witness that he or she “is aware of [their] obligation to tell the
truth and of [their] liability under applicable national law in the event of any breach of
this obligation;”
– 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 expert. 125
17-87 However, in contrast to Court appointed experts, the rules governing conflicts of interest
applicable to judges as set out in art.7 Statute do not apply. Nevertheless, a party expert does
still have a duty to assist the Court impartially on matters relevant to their area of expertise,
which overrides any duty to the party retaining him. The party expert must be independent and
objective, not acting as an advocate for any party to the proceedings. This is set out in r.181(2)
RoP, which also requires the Court to list these duties in the order summoning the expert to the
oral hearing. Note also that r.3.1 of the Code of Conduct for Representatives requires that a
representative shall ensure that party experts are fully informed about their obligation to assist
the Court. 126
17-88 These duties differ from those in some jurisdictions where there is no explicit requirement
for party experts to be impartial, and this has an influence on the value of the expert’s
authority. For instance, in Germany, party appointed experts are treated like “regular”
witnesses and have a duty to tell the truth, but are not required to be impartial or
independent. 127 Practitioners in these jurisdictions will therefore need to adjust the way
they instruct and interact with their party appointed experts to ensure the experts are able
to comply with their duties to the Court particularly if, in addition to submitting a written
report, they are called to testify at an oral hearing.
17-89 Despite these provisions, party appointed experts may never be viewed as being as
independent as Court appointed experts as the latter have not been selected because of their
views, but because of their expertise. This stems from the fact that a party will only present a
120
121
122
123
124
125
126
127
See paragraph 17-46.
rr.175 to 180 RoP.
r.181(1) RoP. See paragraphs 17-47 to 17-64.
As described in paragraphs 17-60 to 17-64.
r.181(1) RoP. See paragraphs 17-47 to 17-49.
r.175(3) RoP.
Published by the Administrative Committee on 8 February 2023.
s.395 German Code of Civil Procedure.
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A Guide to the UPC and the UP 336
