A guide to the UPC and the UP - Flipbook - Page 376
Third Party Requests
18-98 Where the Court orders a third party to adduce evidence, the interests of that third party shall
be duly taken into account. 118 Those interests might include the commercial sensitivity of the
documents that have been requested and the business disturbance that may be caused by
having to produce them. It is therefore in the interests of the party requesting the documents
to structure the application in a way that minimises the impact on the third party, as this may
increase the likelihood that the Court will grant the request. Steps taking the interests of a
third party, such as confidentiality, into account could include ensuring that the requested
information is submitted to a neutral person, such as a court expert, 119 or a confidentiality club
of lawyers. 120 Alternatively, inspection of the documents could take place at the premises of the
respondent, instead of handing them over to the applicant.
18-99 Where the party is located within the EU but outside a Contracting Member State the procedure
under the Evidence Regulation will need to be followed. 121
18-100 Where the third party in control of the evidence is resident outside the EU, the procedure
under the Hague Evidence Convention may be of assistance. 122 In the United States an
alternative (and potentially swifter) procedure is available under 28 U.S. Code Ch.117 § 1782.
This enables district courts to provide assistance to foreign and international tribunals and
litigants before such tribunals, by compelling persons residing within their district to produce
documents for use in those proceedings. 123 To the extent that there is no relevant convention
or agreement in force, the national law of the Contracting Member State where the division
hearing the matter is located applies 124 and the question becomes whether the courts in that
jurisdiction have the power to compel a third party to give evidence.
Exceptions to Production
18-101 Orders for production of evidence are subject to r.179(3) RoP which provides for privilege
against self-incrimination and rr.287 and 288 RoP which relate to attorney-client and litigation
privilege respectively. 125 Whilst art.59 UPCA makes it clear that an order to produce evidence
shall not result in an obligation of self-incrimination, the implementation of that provision in
relation to orders to produce evidence is ambiguous. R.179(3) RoP states that a person is not
obliged to sign a witness statement if they are related to a party in the proceedings, and also
allows them to refuse to answer questions if doing so would expose them or their relations to
criminal prosecution. It is not clear exactly how these provisions apply to orders to produce
evidence. A purposive reading would suggest that a party may refuse to produce any evidence
if that evidence would open them or their relations to criminal prosecution under applicable
national law.
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120
121
122
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r.190(5) RoP.
This is for instance the case in Belgium, where art.878 Judicial Code provides that the third party should submit the
requested document to the court where it is available for inspection, and where the third party can be heard in chambers,
i.e. without the presence of other parties.
r.262A RoP allows for the setting up of confidentiality clubs. See chapter 12 (Written Procedure) paragraphs 12-47 to 12-49.
Regulation (EU) 2020/1783 on cooperation between the courts of the Member States in the taking of evidence in civil or
commercial matters (taking of evidence) (recast). See chapter 17 (Evidence) paragraphs 17-17 and 17-18.
The Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. See chapter 17
(Evidence) paragraphs 17-19 to 17-22.
See chapter 17 (Evidence) paragraph 17-23.
r.173(3) RoP.
r.190(6) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 366
