Don’t ask for a UPC technical judge too soon

The UPC Rules of Procedure do not provide prescriptive directions for every possible eventuality in the court. Space is instead left for the judges to exercise their case management powers to arrange proceedings efficiently and sensibly.

That may mean allowing some possibilities and limiting others.

For example, some Rules are silent on when a particular step may be taken and this is left for the judge to decide.

This happened recently in the Local division Düsseldorf case Nutricia v Nestlé in respect of technically qualified judges. Here, it was held that an application by the defendant to have a technically qualified judge appointed to hear the case, before the service of the defence, was too early.

Instead, such a request should take place at a stage in the written procedure where the judge-rapporteur is able to make a first rough assessment of whether an additional technically qualified judge is actually needed or not. This assessment is not limited to the question of the relevant field of technology, but extends to the question of whether the involvement of a technically qualified judge will be necessary at all given the issues in dispute. 

Logically, the earliest point at which such an assessment can be made is after the filing of the statement of defence because, by the time the defence is filed, it will be known which aspects of the claimant’s case are disputed. 

Adding a technical judge that turns out not to be needed may also, the judge notes, slow down proceedings unnecessarily.