A guide to the UPC and the UP - Flipbook - Page 352
interim conference 164 and this could potentially include an order for repeats of the
experiments, or an order that the experiments be performed by a Court expert. It seems
unlikely that the same weight would be given by the Court to a report on experiments carried
out by a party expert where the other side has not been given the opportunity to comment on
and attend the experiments as it would to a report on experiments carried out by a Court
expert under r.201 RoP. Therefore, it may be worth considering a request for experiments to be
carried out by a Court expert under r.201 RoP to reinforce any reports on the same
experiments included in the party expert’s report.
17-114 If an order for experiments by a Court expert is requested under r.201 RoP, the requesting
party must disclose any previous attempts to carry out similar experiments. What, then, is the
situation where a party expert carries out work-up experiments which do not support a position
taken by the expert in their report? If the party does not request an order for experiments
under r.201 RoP, the requirement to disclose previous attempts to carry out similar
experiments is not triggered. However, by failing to mention in the report experiments which
do not support the expert’s position, the expert may not have complied with the duty to be
impartial, independent and objective and this fact would become apparent when questioning
the expert at the oral hearing. To avoid this, it may be worth instructing a non-testifying expert
to carry out any initial work-up experiments before involving the party expert.
164
r.104(e) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 342
