A guide to the UPC and the UP - Flipbook - Page 347
party appointed expert to the Court if the expert supports the view of that party. It remains to
be seen how much weight the Court will give to evidence from party experts.
Hearing of Witnesses and Experts
17-90 If a witness or expert provides oral testimony, 128 any questioning is done under the control of
the Court and is limited to what is necessary. 129 R.178 RoP, which describes the hearing of
witnesses, applies equally to witnesses, party experts 130 and Court appointed experts. 131
Reimbursement of Expenses
17-91 Pursuant to r.180(1) RoP, witnesses are entitled to reimbursement of:
– Their expenses for “travelling and stay”; and
– Loss of income caused by their “hearing in person”.
17-92 This provision for reimbursing witnesses applies equally to party experts and Court
appointed experts. It also applies to witnesses heard through the letters of request process. 132
Although the wording is not completely clear, it seems likely that “hearing in person” refers to
the loss of income caused to the witness or expert by attending the hearing in person. As for
the witnesses’ expenses for “travelling and stay”, the language does not make it completely
clear whether the entitlement to reimbursement is limited only to those expenses incurred by
attending the hearing in person. So, for example, it is not clear whether this provision
additionally covers the expenses incurred when attending preparatory discussions.
17-93 The Registry will make a payment to the witness towards the expenses incurred. R.180(2) RoP
prescribes that the Court shall make the summoning of a witness conditional upon the deposit
by the party relying on the witness of a sum sufficient to cover these expenses. For Court
appointed experts it is unclear how r.180(2) RoP will apply (i.e. which party should pay the
deposit). One interpretation could be that the party who has the burden of proof for the issue
on which the expert is requested to testify should pay the deposit. Expenses are considered to
be costs incurred in the proceedings by the Court. 133
17-94 Further guidance is in the Code of Conduct, which states that, if required, the representative
may arrange for “reasonable compensation” for the time spent to prepare and present
evidence of witnesses and party experts. The Code of Conduct includes a note which states that
“appropriate accommodation, travel costs etc for preparatory purposes” should be allowable as
part of a “reasonable compensation”. 134
Experiments
17-95 Experimental evidence is another means of adducing evidence to establish a statement of fact
in court proceedings. Art.53(1)(g) UPCA and r.170(2)(g) RoP list “conducting comparative tests 135
and experiments” as a means of obtaining evidence and r.170(1)(b) RoP lists “reports on
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130
131
132
133
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r.112(3)(b) RoP. The Court may decide to hear witnesses or experts through electronic means such as a video conference.
art.53(2) UPCA.
r.181 RoP.
r.188 RoP. See chapter 14 (Oral Procedure) paragraphs 14-33 to 14-41.
r.173 RoP. See paragraphs 17-15 to 17-23.
r.150 RoP. See chapter 21 (Court Fees and Recoverable Costs).
r.3.3 Code of Conduct for Representatives published on 8 February 2023.
The RoP do not contain any further references to “comparative tests”. It is unclear whether a distinction is intended between
comparative tests and experiments. It is assumed that no distinction exists and that “experiments” is the umbrella term for
both experiments (in the narrower sense) and comparative tests. It follows that the rules on experiments also apply to
comparative tests.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 337
