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20-58 Compensation for party expert costs which go beyond the expenses listed in r.180(1) RoP, 129
is based on the rates that are customary in the respective sector, with due regard to the
required expertise, the complexity of the issue and the time spent by the expert for the
services rendered. 130 It is presumed that costs falling within this category will include the fees
of the party expert, covering areas such as the costs for writing the report and attendance at
all hearings and meetings. As the wording of r.153 RoP is quite broad, it will presumably
relate to all costs outside of the expenses specified in r.180 RoP.
20-59 The criteria for determining compensation at “rates that are customary in the respective
sector” provide a wide scope of discretion for the Court. In the course of the public
consultation on the draft RoP in 2013, it was suggested that the Court could maintain
a schedule of customary rates. However, the Preparatory Committee declined to amend
the RoP, the decision being one for the Court to take in each particular instance.
20-60 The guidelines for party expert fees vary under the laws in Contracting Member States.
For instance, in Germany, the costs of a party expert may only be compensated if the report is
related to the specific case and if the costs are considered “necessary”. This is a relatively high
threshold, as the judicial taking of evidence through court experts is given priority in Germany.
In assessing the amount of costs for which the expert may be compensated, the courts
specifically address the appropriateness of the time spent as well as the invoiced hourly rate. 131
In particular, the statutory rules relating to the remuneration rates of court experts 132 are not
generally applicable to party experts. 133 In a similar way to the RoP, the party expert costs
usually form part of the costs of that party, if successful, and the court may order the
unsuccessful party to pay at least a portion of those costs. The court will only allow costs that
are proportionate to the matters in issue. Disproportionate costs may be disallowed even if
reasonably or necessarily incurred. If a single joint expert is instructed, then the parties are
jointly and severally liable for payment of the expert’s fees and expenses. In patent litigation in
the Netherlands, the winning party is normally entitled to full remuneration of its costs
including the costs of any expert on the basis of the implementation of art.14 Enforcement
Directive. However, this is subject to the test in art.14 Enforcement Directive that they are
reasonable and proportionate. 134
20-61 Some further guidance may be provided in the Code of Conduct which provides that, if
required, the representative may arrange for reasonable compensation for the time spent to
prepare and present evidence of party experts. Upon the request of the Court, or reasonable
request of a party, the representative must inform the Court about the extent of that
compensation. The Code of Conduct includes a note which observes that whether or not a
request is reasonable is up to the Court. The Court has the discretion to “give or withhold
grounds for such a request”. Any party should “give reasons for their request to avoid
unnecessary disclosure or related obligations.” 135
Costs of Witnesses
20-62 In contrast to the rules on the costs of party experts, the RoP do not provide specific rules for
compensating the costs of witnesses going beyond the expenses listed in r.180(1) RoP. It is
therefore not clear from the RoP alone whether a party could claim the costs of, for example,
the witnesses’ time preparing a witness statement. Furthermore, a party who wishes to
reimburse a witness should take care in any event as, although the RoP is silent on this point,
there is a risk that the other party could during the oral hearing question the witness about the
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i.e. travel, stay and loss of income.
r.153 RoP.
See Auflage, Münchener Kommentar ZPO, 4th edn. (C.H. Beck, Munich, 2013), s.91 marginal nos. 158 et seq.; Auflage,
Saenger, ZPO, 6th edn. (C.H. Beck, Munich, 2015), s.91 marginal nos. 15 et seqq.
For instance, the Judicial Remuneration and Compensation Act (Germany).
See Federal Supreme Court of Germany, Decision from 25 January 2007, docket no. VII ZB 74/06, NJW 2007, 1532.
Leidseplein Beheer v Red Bull Nederland [2015] Supreme Court 13 February 2015, ECLI:NL:HR:2015:292.
r.3(3) Code of Conduct for Representatives – see chapter 23 (Legal Representation, Privilege and Code of Conduct).
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A Guide to the UPC and the UP 405
