A guide to the UPC and the UP - Flipbook - Page 349
– Propose an expert to carry out the experiments; 143 and
– Disclose any previous attempts to carry out similar experiments. 144
17-100 Pursuant to r.201(2) RoP, the party requesting the experiment needs to lodge a request
“as soon as practicable” in the written procedure or interim procedure which could suggest that
requests which are not made in good time will be rejected. There is, however, no specific time
limit within which to lodge such a request and it remains to be seen in practice how the Court
will deal with requests that are lodged at a late stage of the written or interim procedures.
Ultimately, it lies in the Court’s discretion on whether to disregard evidence that is not
submitted in accordance with a time limit set by the RoP. 145
17-101 Furthermore, the party has to identify the facts it intends to establish. This requirement
facilitates the clarification of the controversial issues and will at the same time prevent requests
that are merely directed towards an undue investigation of facts (in the sense of a discovery).
Moreover, the proposed experiments and the reasons for carrying them out have to be
described in detail. With these limitations, parties can be discouraged from requesting
experiments arbitrarily and with an improper objective. However, the extent of the description
and the reasons for the experiment are not particularised in the RoP so that these
requirements are again subject to further interpretation by the Court.
17-102 Pursuant to r.201(2)(b) RoP, the party seeking to prove a statement of fact has to “propose”
an expert to carry out the experiments. In contrast to the appointment of Court experts, 146
the parties have to propose a specific expert to conduct the experiments although the final
decision on appointing the expert still rests with the Court. 147 Other parties can comment on
the identity of the proposed expert, 148 and their arguments may influence the decision of the
Court as to the appropriate expert for the requested experiments.
17-103 It is difficult to predict the level of detail that will be needed in the request for experiments in
practice. Whilst it may be desirable to keep a request brief from a strategic point of view to
avoid disclosing too much information to the other side, a request may risk rejection by the
Court if it is too skeletal. The request must also disclose any previous attempts to carry out
similar experiments. 149 There is no guidance on the level of detail to be given – should the
requesting party disclose merely the fact of the existence of preliminary experiments, or should
they also disclose the results of such experiments? It seems likely that if the requesting party
discloses the former, the other party would request specific disclosure of the experiments
under r.190 RoP. Furthermore, the reference to “similar” experiments is imprecise and also
subject to further interpretation by the Court. This requirement would make more sense if the
party has to disclose the relevant results and not just submit a list of experiments that have
previously been carried out. Understood this way, this rule can help prevent arbitrary requests
or requests with an improper objective and hence accelerate proceedings.
Selection and Status of the Expert
17-104 According to r.201(5) RoP the expert for experiments becomes a Court expert, 150
however, there is no specific reference in r.201 RoP to the rules relating to Court experts. 151
It is presumed that these rules will be equally applicable to experts appointed to conduct
experiments, including, for example, the requirement for a Court expert to possess the
143
144
145
146
147
148
149
150
151
r.201(2)(b) RoP.
r.201(2)(c) RoP.
r.9(2) RoP.
r.185(2) RoP.
r.201(5) RoP.
r.201(3) RoP.
r.201(2)(c) RoP.
This was introduced in the 16th draft of the RoP.
rr.185 to 188 RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 339
