A guide to the UPC and the UP - Flipbook - Page 351
Procedure for Ordering and Conducting Experiments
17-107 Once a party has requested an experiment under r.201(1) RoP, the other parties to the
proceedings will then be invited to state whether they dispute the facts intended to be
established by the experiments, and will also be invited to comment on the request,
including the identity of the expert proposed and the description of the experiments. 161
The requirement for the other party to state whether it disputes the facts intended to be
established appears to be aimed at narrowing the issues in dispute between the parties and
focusing any experiments on areas of genuine dispute. Where there is no dispute, there is no
need for experiments and therefore it is more than likely that the Court will reject the request.
17-108 The Court may order that the experiments be carried out in the presence of the parties and
their experts, where appropriate. 162 This way of proceeding increases the transparency of the
experimental procedure used and can serve to prevent later disputes about the precise way in
which the experiment was conducted and the results obtained.
17-109 Once the report on the experiments is presented to the Court, the parties can comment on it
according to r.201(7) RoP. They may do so either in writing or during the oral hearing, to which
the expert may also be summoned.
17-110 This procedure bears some similarity to the requirements for experimental evidence in the
UK, 163 where a party seeking to establish any fact by experimental proof must serve a notice of
experiments on the other party. This notice must state the facts the party seeks to establish,
and give full particulars of the experiments proposed to establish them. The other side then
responds by stating whether or not the facts are admitted, and may request to inspect a
repetition of the experiments. Any privilege attaching to documents relating to workup
experiments for the experiments in the notice of experiments is waived by serving the notice
and the other side can request disclosure of these. If the facts allegedly established by the
experiments are still in dispute at trial, there may be further questioning of relevant witnesses
relating to the experiments by either party.
17-111 One point of difference between the UK procedure and the RoP is that, in the former,
specific experiments to establish a particular fact or facts have usually been performed
before serving the notice of experiments and it is the details of these experiments that are
given in the notice. The notice allows for repeat experiments to be witnessed by the parties if
one party disputes the result. By contrast, the RoP allow earlier experiments (perhaps to test
whether they are actually effective at proving the facts in question), but the actual experiments
to prove the facts to be established are not performed until the order of the Court allowing
the experiments.
Experiments Carried Out by Party Experts
17-112 There is little guidance in the rules regarding experiments carried out by party experts.
The procedure for experiments performed by Court experts under r.201 RoP is specifically said
to be without prejudice to the possibility for parties or parties’ experts to carry out experiments.
It is assumed that the results of any experiments would be included in the expert’s written
report in line with the general freedom under r.181 RoP for parties to provide any expert
evidence that they consider necessary and the freedom to determine the supporting evidence
for their case under art.43 UPCA.
17-113 There does not seem to be an automatic right for the other side to request repeats of such
experiments in its and/or its expert’s presence in the event that the results are contested.
However, the judge-rapporteur has the power to issue orders regarding experiments during the
161
162
163
r.201(3) RoP.
r.201(6) RoP.
Practice Direction 63 – Intellectual Property Claims, paragraph 7.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 341
