First instance of a witness being invited to testify in UPC oral proceedings

In an order dated 27 August 2024 (UPC_CFI_358/2023), the Paris (FR) Local Division of the UPC allowed a request by the claimant for a witness to be heard at the forthcoming oral hearing. The judge rapporteur accepted the reasons for the request, namely the fact that the defendant had contested the evidentiary value of the written statements provided by the witness. The judge-rapporteur further accepted the applicant’s request for the witness testimony to be provided in English.

The defendant had expressed concerns over the impartiality and neutrality of the witness, and had argued for the rejection of the application on the basis of, inter alia, the status of the witness as an employee of the claimant. However, the judge-rapporteur dismissed this reasoning, stating that testimony would be given under oath as provided by Rule 178 Rules of Procedure (RoP).

The defendant further requested for simultaneous translation of the testimony into the language of proceedings, i.e. French. However, this request was also rejected on the basis that English was one of the two possible procedural languages before the Paris Local Division and was understood by all members of the panel. Furthermore, the Court stated that, as English is a common working language of the UPC, it is deemed to be understood by all UPC representatives. This decision does not preclude the ability of the defendant to hire an interpreter at its own expense (Rule 109.4 RoP).

We are aware that there has been other live testimony given by witnesses in proceedings before other UPC courts, including in the Munich local division on the hearing of a PI application this summer.  It will be interesting to see if the judges of the UPC will encourage more oral and live evidence to be given in Court particularly where disputes arise as to the provenance and accuracy of any written testimony.