A guide to the UPC and the UP - Flipbook - Page 414
which states that “appropriate accommodation, travel costs etc for preparatory purposes”
should be allowable as part of a “reasonable compensation”. 121
Costs of Court Experts
20-53 The costs of Court experts are part of the costs incurred in the proceedings by the Court. 122
R.185(7) RoP states that the Court shall agree with the expert on a fee covering the written
expert report and participation in the oral hearing. If the expert does not deliver the report
within the time period specified by the Court or if the report is not of the quality expected of
the expert, the Court may reduce this fee by an equitable amount. This provision provides the
Court with some latitude as to the amount of the Court expert’s fee, although there is no
guidance on how this reduction may be calculated. In addition, the word “may” indicates that
the Court is not obliged to reduce the fee, and that it is a matter for the Court’s discretion.
20-54 In some Contracting Member States there are specific laws regarding the remuneration
of court experts. In Germany, for example, the fee for the report is generally determined
according to fee groups defined by various subject areas. 123 The parties usually provide
an advance payment to the court expert pending final determination of which party
is responsible for the costs.
20-55 On an initial reading of r.185(7) RoP, it is not clear who is supposed to pay for the fees of
a Court appointed expert. The expert could be paid by the Court or could be paid separately
by the parties. In this regard, concerns were raised in the course of the public consultation on
the RoP. 124 The Expert Group of the Preparatory Committee responded that “This should be
covered as part of the general rule on costs as discussed above.” As a consequence, a reference
to r.185(7) RoP was inserted into r.150(1) RoP. Hence, the costs of a Court appointed expert are
considered costs incurred by the Court. From this it can also be inferred that the fees of the
expert are initially paid by the Court, presumably out of prepaid Court fees, and will later be
allocated to the parties in the cost decision under r.150 RoP.
20-56 This concept is comparable with the approach in several Contracting Member States, including
in Germany, in which the costs of court experts are considered expenses of the court
(“Auslagen”) that are part of the court fees (“Gerichtskosten”). These fees are similarly subject to
a cost decision. 125 Furthermore, the court may make the appointment of the court expert
dependent on an advance payment being made by the party tendering evidence. 126 These
provisions of the German Code of Civil Procedure do not apply to situations in which the court
appoints the expert of its own motion. They are only applicable if the appointment of a court
expert is suggested by a party. 127
Costs of Party Experts
20-57 Generally, it is assumed that the costs of the party expert, both fees and expenses, will be
borne initially by the instructing party. Party expert costs are considered part of the costs of
the successful party, 128 and so will be subject to a cost decision after the decision on the merits.
121
122
123
124
125
126
127
128
r.3(3) Code of Conduct for Representatives – see Chapter 23 (Legal Representation, Privilege and Code of Conduct).
rr.150(1) and 185(7) RoP.
c.f. the Judicial Remuneration and Compensation Act (Germany).
See the “the IP Federation policy paper PP15/13 “Public consultation on the Rules of Procedure for the Unified Patent Court”
30 September 2013, p.11, available at https://www.ipfederation.com/policy-papers/?src=rules+of+procedure [Accessed 14
April 2023].
s.91 et seq. German Code of Civil Procedure.
ss.379 and 402 German Code of Civil Procedure.
See Federal Supreme Court of Germany, Decision from 10 November 1999, case no. I ZR 183/97, NJW 2000, 743;
Zimmermann in Münchener Kommentar ZPO, 4th edn. 2012, s.402 marginal no. 3.
r.150(1) RoP, referring to r.153 RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 404
