A guide to the UPC and the UP - Flipbook - Page 374
Orders to Produce Evidence
18-86 In contrast to a saisie or an order for inspection, an order to produce evidence is made
only after proceedings have been commenced, either during the written or the interim
procedures. 114 The request can be made of either the opposing party or a third party
and in this way the scope of the rule goes beyond the equivalent provision in art.6(1)
Enforcement Directive, which is limited to evidence in the control of the opposing party.
18-87 The RoP do not state that use of the evidence obtained should be limited to the current
proceedings and therefore, unless restrictions as to its use and/or its disclosure to third parties
is included in the order, the receiving party will be able to use it in other cases and/or in other
jurisdictions. One would therefore expect the respondent to an application to request the
inclusion of such a restriction in the order.
Evidence to be Produced
18-88 The evidence requested must be “specified” by the party applying for the order. This will require
the applicant to balance their desire to obtain as much useful evidence as possible with the
need to convince the Court that the request is sufficiently focused and not a speculative fishing
expedition. During the drafting phase, the word “indicated” was rejected by the Expert Group of
the Preparatory Committee as a proposed replacement for the word “specified”, on the basis
that specified evidence was designed to exclude assumed evidence. Quite what the distinction
between indicated and specified evidence means in practice and how narrowly parties will need
to focus their requests, remains to be seen.
18-89 Art.59(2) UPCA makes it clear that the evidence which can be obtained from the other party to
the proceedings includes banking, financial or commercial documents. It is not clear what this
adds to the general provision in art.59(1) UPCA, as presumably banking or financial documents
could also be considered “specified evidence”. If this is wrong, art.59(2) UPCA raises the
additional question as to whether this category of documents can be obtained from a third
party, as it specifically refers to such documents being under the control of the opposing party.
Such a restriction would appear unnecessary and therefore the broader interpretation of
art.59(1) UPCA is preferred.
Evidence in Support of the Application
18-90 For an order to produce evidence to be granted, the requesting party must provide its own
evidence in support of its application. There are some notable differences in the wording
between art.59(1) UPCA and r.190(1) RoP. The UPCA, mirroring the wording in art.6
Enforcement Directive, requires the requesting party to present “reasonably available evidence
sufficient to support its claims”. The RoP on the other hand require the requesting party to
present “reasonably available and plausible evidence in support of its claims”. Although the
wording differs and it could be argued that the bar under the UPCA is slightly higher than
that set under the RoP. Whatever the test, the requirement for the requesting party to provide
its own supporting evidence would appear to be a threshold test to dissuade parties from
issuing speculative proceedings in the hope that they might obtain sufficient evidence to
support a claim.
114
art.59 UPCA and r.190 RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 364
