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Other Expenses
20-48 A cost decision of the Court covers costs incurred in the proceedings by both the Court and the
costs of the successful party, including Court fees paid by that party. 112 Costs incurred by the
Court may include costs in relation to witnesses 113 and Court experts, 114 experiments, 115 letters
rogatory 116 and compensation for interpreters and translators. 117 Such costs are potentially
recoverable, with the exception of the costs for interpretation and translation which is
necessary for the judges in order to conduct the case in the language of the proceedings which
are considered an overhead of the Court. In addition to the Court fees and legal costs, a
successful party may also have expenses relating to witnesses and its own party experts.
20-49 In United Video Properties v Telenet, the CJEU took the view that the expression “other expenses”
only applied to those costs that are directly and closely related to the judicial proceedings. 118
However, there is no limit to what those “other expenses” might be; so that they could
encompass more than those things referred to in the rules setting out the procedure for
a cost decision and specifically rr.150 and 151(d) RoP, provided that they are directly and
closely related to the proceedings. It could also be said that the costs have to be necessary
to the proceedings since “unnecessary” costs incurred by the Court or the other party
should be borne by the party which has caused them to be incurred. 119
Reimbursement of Expenses due to Witnesses and Experts
20-50 Pursuant to r.180(1) RoP, witnesses are entitled to reimbursement of:
–
Their expenses for “travelling and stay”; and
–
Loss of income caused by “his hearing in person”.
20-51 This provision for reimbursing witnesses applies equally to party experts and Court appointed
experts. It also applies to witnesses heard through the letters rogatory process. Although the
wording is not completely clear, it seems likely that “his hearing in person” refers to the loss
of income caused to the witness or expert by attending the hearing in person. As for the
witnesses’ expenses for “travelling and stay” the language does not make it completely clear
whether the entitlement to reimbursement is limited only to those expenses incurred by
attending the hearing in person. So, for example, it is not clear whether this provision
additionally covers the expenses incurred when attending preparatory discussions.
20-52 The Registry will make a payment to the witness towards the expenses incurred and r.180(2)
RoP prescribes that the Court shall make the summoning of a witness conditional upon the
deposit by the party relying on the witness of a sum sufficient to cover these expenses.
For Court appointed experts it is unclear how r.180(2) RoP will apply (i.e. which party
should pay the deposit). One interpretation could be that the party who has the burden
of proof for the issue on which the expert is requested to testify should pay the deposit.
Some guidance may be provided in the Code of Conduct for Representatives, 120 which states
that, if required, the representative may arrange for “reasonable compensation” for the time
spent to prepare and present evidence of witnesses and party experts. It also includes a note
112
113
114
115
116
117
118
119
120
r.150(1) RoP.
r.180 RoP.
rr.185(7) and 188 RoP.
r.201 RoP. See paragraph 20-66.
r.202 RoP.
r.155 RoP.
(C-57/15), [36].
art.69(3) UPCA.
See chapter 23 (Legal Representation, Privilege and Code of Conduct).
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 403
