A guide to the UPC and the UP - Flipbook - Page 484
Duties of the Legal Representatives in Relation to the Case and Evidence
23-41 Representatives of the parties to the proceedings have an obligation not to misrepresent cases
or facts before the Court either knowingly, or with good reasons to know. 62
23-42 The Code of Conduct contains a number of provisions relevant to duties of representatives in
respect of the evidentiary aspect of the proceedings. These include:
– False or misleading information 63 – If a representative becomes aware of misleading the
Court, or that a witness has given evidence which is not true, the representative shall seek
its client’s consent to inform the Court as appropriate. This rule is intended to achieve the
objective of art.48(6) UPCA by addressing the situation where non-witness evidence is
provided to the Court by the representative in good faith which turns out to be misleading
later on, or where witness evidence turns out to be incorrect. It is expressly not intending
to introduce a US-style inequitable conduct doctrine.
– Information unrelated to the subject matter of the proceedings 64 – If a representative
obtains information when carrying out measures ordered by the Court to preserve or gather
evidence, the representative shall not use that information for any purpose or disclose the
same to any person, including the representative’s client.
– Dealings with witnesses and party experts: information on legal obligations 65 –
A representative must ensure that witnesses are at all times fully informed about their
obligation to tell the truth and of their liability under applicable national law in the event of
any breach of this obligation. 66 A representative must also ensure that party experts are fully
informed about their obligation to assist the Court impartially, being independent and
objective and not advocating for any party. 67
– Dealings with witnesses and party experts: contact 68 – Subject to providing the information
on legal obligations, and to the extent necessary, a representative may contact witnesses
and party experts out of Court in the context of a specific pending case in which they are
involved, to verify the eligibility for their respective roles, to explain their roles and to assist
with the preparation of their evidence. A representative must do everything to ensure that
the substance of the evidence of a witness or party expert solely reflects the witness’
or expert’s respective recollection or opinion.
– Dealing with witnesses and party experts: compensation 69 – If required, the representative
may arrange for reasonable compensation for the time spent to prepare and present
evidence of witnesses and party experts. 70
62
63
64
65
66
67
68
69
70
art.48(6) UPCA and r.284 RoP.
r.2(5) Code of Conduct.
r.2(6) Code of Conduct.
r.3(1) Code of Conduct.
See chapter 17 (Evidence) paragraphs 17-60 to 17-64 for more information on witnesses’ duties.
See chapter 17 (Evidence) paragraphs 17-86 to 17-89 for more information on party experts’ duties.
r.3(2) Code of Conduct.
r.3(3) Code of Conduct.
See chapter 20 (Court Fees and Recoverable Costs) paragraphs 20-50 to 20-62.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 474
