Similar, yet Different – the Rendering of Evidence Before the UPC

On 1 June 23, the UPC finally takes up its work. The UPC’s procedural framework, which parties are about to witness practically, shows vast similarities but also some distinct and important differences to German procedural law. As laid out below, this is particularly true when it comes to the evidence procedure.

The evidence procedure before the UPC is governed solely by the Rules of Procedure, Art. 53 (2) UPCA, Rules 170 et seq. of the RoP. As in German patent proceedings, the evidence procedure can be divided into the request for evidence (the offer of evidence by the parties), the taking of evidence and the assessment of evidence.

I. Request for Evidence

The party making a factual claim that is disputed or likely to be disputed by the other party must offer proof of this fact, Rule 171 No. 1 of the RoP. This offer of proof is the party’s request for evidence.

Unlike in the German system, evidence does not have to be offered only when the opponent disputes a fact, but already at the time when this fact is presented. In principle, each new statement of facts in the written pleadings thus requires a simultaneous offer of evidence in order to prevent the opposing party from claiming that the evidence in question is belated.

The kinds of evidence that can be rendered before the UPC are not exhaustively prescribed, cf. Art. 53 UPCA and Rule 170 of the RoP. According to Art. 53 (1) UPCA, the admissible evidence includes in particular the following means of evidence:

• Hearing of the parties,
• obtaining information,
• production of documents,
• examination of witnesses,
• expert reports,
• taking of visual evidence,
• comparative tests or trials, and
• submission of an affidavit (affidavit).

 II. Taking of evidence

The rules applicable for the taking of evidence vary based on the respective evidence, Rules 175 to 201 of the RoP. Of particular interest are the rules on witness and expert evidence.

1. Witness evidence

The party seeking to offer witness evidence shall lodge a written witness statement or a written summary of the evidence to be given, Rule 175 No. 1 of the RoP.

Whether this written summary constitutes evidence of its own kind or is also a prerequisite for the subsequent examination of the witness remains to be clarified. Rules 176, 177 of the RoP, which regulate the examination of witnesses, can be understood independently of Rule 175 No. 1 of the RoP and do not require a prior written summary of the evidence for the personal examination of the witness. Until the relationship between Rules 175, 176 and 177 has been clarified by the UPC, the submission of a written summary of the witness' statement is recommended.

The hearing of the witness takes place after their identity has been established and after the witness has declared that they will testify truthfully, Rule 178 No. 1 of the RoP. If the witness has previously made a written statement, the hearing of the witness begins with the confirmation of the evidence given therein, Rule 178 No. 3 of the RoP. During the examination, not only the presiding judge and the judges of the panel, but also the parties (under the direction of the presiding judge) may put questions to the witness, Rule 178 No. 4 and 5 of the RoP.

2. Expert evidence

The UPCA differentiates between whether an expert was nominated by a party (Rule 181 of the RoP) or appointed by the court (Rule 185 et seq. of the RoP).

The parties may provide expert evidence at their own discretion, Rule 181 No. 1 sentence 1 of the RoP ("any expert evidence that it considers necessary"). The rules on witness evidence - the already discussed Rules 175 ff. of the RoP - apply accordingly, Rule 181 No. 1 sentence 2 of the RoP.

The appointment of a court expert takes place if the court must resolve a specific technical or other question in relation to the action, Art. 57 UPCA, Rule 185 No. 1 of the RoP. For this purpose, a non-binding list of experts is kept by the court, cf. Art. 57 (2) UPCA. The parties are free to propose a person for the role of court expert, cf. Rule 185 No. 2 of the RoP. Parties must also be heard before the expert is appointed, cf. Rule 185 No. 1 of the RoP.

Materially, the differences between the parties' experts and the court-appointed expert are minor. The expert appointed by the parties also has a duty to assist the court impartially on matters relevant to his area of expertise. This duty overrides any duty to the party retaining him, Rule 181 No. 2 (a) of the RoP.

Also the evidentiary value of the evidence given by court appointed and (mere) party nominated experts is – in principle – equal before the UPC. This is substantially different under German civil procedure law, where only court-appointed experts can provide evidence, whereas the opinion of a party-appointed expert merely accounts for a substantiated party submission.

III. Assessment of evidence

The principle of free and independent judicial assessment of evidence also applies before the UPC, cf. Art. 76 (3) UPCA. In contrast to German procedural law, there however is a fundamental obligation to present the evidence before the UPC, cf. Rule 172 No. 2 of the RoP. If the party fails to produce the evidence, the court may decide the question of evidence to the detriment of that party, cf. Rule 172 No. 2 sentence 2 of the RoP.

The UPC is generally free to assess the evidentiary value of various means of evidence. There is also no distinction between formalized and lesser regulated types of evidence, cf. Art. 53 UPCA, Rule 170 No. 1 of the RoP. A distinction e.g. according to the type of evidence is not provided for, cf. e.g. Rule 104 (e), Rule 112 No. 2 of the RoP. Thus, if two means of evidence lead to contradictory results, the UPC may give preference to one or the other means of evidence at its own discretion.

The UPC does also not limit some means of evidence to certain procedural constellations, as is the case e.g. for evidence by affidavit or party examination in German civil proceedings. This is reasonable. The unlimited admissibility of an affidavit as evidence is particularly suitable to simplify and accelerate the proceedings, especially if the person that would otherwise need to be summoned is unable to attend a hearing. It is unlikely that this will lead to a substantial amount of questionable evidence being submitted via affidavit. In that case, the other party would still be able to challenge the contents of the affidavit, in which case the court could still order the personal examination of the witness/expert according to Rule 177 No. 1 of the RoP.