A guide to the UPC and the UP - Flipbook - Page 350
requisite expertise, independence and impartiality. 152 In light of this, the Court may specifically
decide to reject an expert proposed by the requesting party if the expert does not meet these
criteria. It is also unclear whether the expert selected under r.201 RoP must necessarily be the
same Court expert selected under r.185 RoP – in case both means of evidence are used –
or whether the rules allow for separate Court experts.
The order of the Court
17-105 If the Court allows the experiments, it shall issue an order specifying the following: 153
– The detailed experiments; 154
– The name and address of the expert 155 who will carry out the experiments as the Court’s
expert and draw up the report on the experiments; 156
– The time period and (where appropriate) the exact time and place for carrying out
the experiments; 157
– Other conditions for carrying out the experiments, if necessary; 158 and
– The time period for presenting the report on the experiments and, where appropriate,
directions relating to the contents of the report. 159
17-106 It remains to be seen how far the Court’s ability under r.201(5)(c) and (d) RoP to specify
conditions for carrying out the experiments and the contents of the expert’s report will be
interpreted as allowing the Court to modify the technical substance of an experiment proposed
by a party under r.201(1) RoP. Rather than allowing the Court to modify the technical detail of
the experiments on its own initiative, these provisions may, more likely, be aimed at giving the
Court discretion to require the experiments to take account of comments made by the other
parties to the proceedings under r.201(3) RoP. 160 These provisions do not seem to imply that
the Court may alter the scope of the experiments beyond that which is proposed by the parties.
Rather, it may specify conditions where needed as guidance for the expert and it may specify
the way in which the report should be delivered so as to provide an answer to an issue of fact
that is the subject of the evidence.
152
153
154
155
156
157
158
159
160
r.185(3) RoP.
r.201(5) RoP.
r.201(5) RoP.
In the drafts of the RoP, r.201 allowed the possibility for more than one expert to be identified. However, the RoP makes it clear
that only one expert shall be specified.
r.201(5)(a) RoP.
r.201(5)(b) RoP.
r.201(5)(c) RoP.
r.201(5)(d) RoP.
As to which see paragraph 17-107.
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A Guide to the UPC and the UP 340
