How is information and evidence submitted to the court scrutinised? For example, is cross-examination available and if so, how frequently is it employed in practice?
Intellectual Property (3rd edition)
Writ: Evidence tendered through witnesses and is open to cross examination. It is employed in every case.
Originating Summons: the Court will look at affidavit evidence and rebuttals
All information and evidence which the parties wish the court to consider, must be presented orally to the court (save for written procedures available in PI proceedings). Cross-examination of witnesses is available and is almost always employed in practice.
All witnesses will be subject to cross-examination by the opposing counsel. This includes expert witnesses.
Cross-examination is not available in our jurisdiction. The Courts shall follow certain guidelines and principals when analysing some piece of evidence. Such guidelines and principals are provided in our legislation but also in our jurisprudence.
Overview of the information and evidence submitted to the court usually takes place during the evidence exchange hearing, and the scrutiny of them is usually conducted via court investigation and debate led by the parties and their attorneys.
Cross-examination of factual and/or expert witnesses by the parties and their agent ad litem is available. The cross-examination is usually made prior to the hearing of trial, and when necessary during the hearing.
Information and evidence is submitted to the Court when presenting the lawsuit when it documental. If not, the evidence is only announced in the lawsuit and submitted during the hearings.
Cross-examination is available and usually used by both parties.
The Cyprus legal system is adversarial. Evidence is submitted through affidavits and presented through oral testimony, whereby witnesses may be cross-examined by the counterparty through procedures providing for examination in chief- cross- examination and re-examination.
Patents: the patent owner is required to prove (i) in the case of the infringement of a product invention patent, that the alleged infringer produces, uses, “Assigns, etc.” (i.e. to assign or to lease, including, in the case where the product is a computer program, to provide through electrical communication line), exports, imports, or offers to “Assign, etc.” the product as part of its business; (ii) in the case of the infringement of a method invention patent, that the alleged infringer uses the method as part of its business; and (iii) in the case of the infringement of a patent of an invention for a method for production of a product, that the alleged infringer uses the method or uses, “Assigns, etc.,” exports, imports, or offers to “Assign, etc.” the product produced by the method as part of its business. Instead of the above acts (direct infringement), the patent owner may prove the elements of indirect infringement. To prove typical indirect infringement of a product invention patent, the patent owner must prove that (i) the alleged infringer produces, “Assigns, etc.,” imports, or offers to “Assign, etc.” a product as part of its business, (ii) the product is used for the production of the patented product, (iii) the product is essential for the resolution of the problem that was resolved by the patented invention, and (iv) the alleged infringer is aware that the invention is a patented invention and that the subject product is used for the implementation of the patented invention.
Utility models: the registered utility model owner is required to prove that the alleged infringer manufactures, uses, assigns, leases, exports, imports or offers to assign or lease (including to display for the purpose of assignment or lease) the device. Instead of the above acts (direct infringement), the registered utility model owner may prove the elements of indirect infringement.
Designs: the registered design owner is required to prove that the alleged infringer manufactures, uses, assigns, leases, exports, imports or offers to assign or lease (including to display for the purpose of assignment or lease) an article having the design. Instead of the above acts (direct infringement), the registered design owner may prove the elements of indirect infringement.
Trademarks: the registered trademark owner typically must prove that the alleged infringer (i) affixes the registered trademark or a trademark similar to the registered trademark to the designated goods or goods similar to the designated goods or packages thereof or (ii) displays items to be used for the provision of the designated services or services similar to the designated services to which the registered trademark or a trademark similar to the registered trademark is affixed for the purpose of providing the services. The Trademark Act sets forth many other circumstances where the registered trademark is infringed.
Copyrights: the copyright owner is required to prove that the act of the alleged infringer is within the act covered by each divisible right. Divisible rights are (i) right of reproduction, (ii) right of performance, (iii) right of presentation, (iv) right of public transmission, (v) right of recitation, (vi) right of exhibition, (vii) right of distribution, (viii) right of transfer of ownership, (ix) right of lending, and (x) right of adaptation.
They are generally demonstrated by documentary evidence, including written statements, experiment reports, and written expert opinions.
The Court can freely assess the evidence taken. The parties have to evidence each of their allegations by offering evidence, such as e.g. physical records, testimony or questioning of the parties, for each allegation. In general, the witnesses and parties will be questioned by the Court or the party who has requested their testimony/questioning and only in relation to the specific allegations where their testimony/questioning was requested, but some Cantonal Courts tend to be more flexible than others. Also, cross-examination may occur indirectly, if a counterparty addresses the Court on additional questions deemed necessary and the Court then submits these additional questions to the witnesses/parties.
The content and strength of evidence submitted by parties are freely assessed by the court. A recent change in the Brazilian Code of Civil Procedure allows cross-examination, which however is not that much employed in solving IP cases in Brazil.
In the High Court's Patents Court and Intellectual Property List, most witnesses providing expert and fact evidence will be called by the opponent for cross-examination during the trial. The length of cross-examination will depend on the nature of evidence given, how important it is to the case and its complexity. Typically, for example, an expert witness will be cross-examined for between 1-2 days. The barristers advising on a case will agree a timetable for the trial and the cross-examination of witnesses.
In the IPEC, the Court intends to provide more streamlined procedures. As a result cross-examination is less routine and, if it takes place, is limited to specific issues, making it considerably shorter in duration. An IPEC trial is limited to 2 days.
All declarations are subject to cross-examination. Refusal to allow cross-examination is very rare.
In civil procedure, submissions and/or evidence are presented to the Courts in writing. The content and strength of evidence submitted by parties are freely assessed by the court, it being specified that:
- the parties can freely discuss the probative value of an exhibit or the conclusions drawn from evidence.
- the probative value can vary according to the type of evidence. For instance:
o a stronger probative value will be granted to a judicial expertise compared to an amicable one.
o a bailiff report is deemed to be valid unless an allegation of forgery is made.
French civil procedure does not provide any process of cross-examination of witnesses.
Courts can order the parties to attend the hearing and can hear the parties and/or witnesses. While cross-examination is not available under German law, the court can in principle allow the parties to address questions to the witness directly; however, in most cases, only the judges will interact with the witnesses.
Art. 116 Italian Civil Procedural Code states the principle pursuant to which the Court is free to assess the evidence provided by the parties, unless otherwise stated by the Law. Therefore, there is no kind of pre-fixed rules for the evaluation of the evidence for the judges, but they must explain their motivation in their rulings.
Under Italian Law cross-examination is not admissible.
- The Civil Procedure Rules which entered into force as of January 1,2016, introduced significant changes as far as the involvement of witnesses in proceedings is concerned. Under the current procedure, witness testimonies are submitted as sworn affidavits. In this stage, cross-examination is not possible. Each party may present up to five sworn affidavits in support of its argumentation and three sworn affidavits in rebuttal. After the assessment of the affidavits by the judge, a formal court hearing takes place and the judge decides the case on the basis of the submitted evidence. It is in the judge's discretion to select one of the persons who provided a sworn affidavit to provide an oral testimony before the court in case the judge deems this is absolutely necessary. In such cases cross examination of witnesses is permitted. The system does not apply to preliminary injunction proceedings where witnesses (one from each side) are examined and cross-examined during the hearing. Sworn affidavits and/or expert opinions are also available in preliminary injunction proceedings.
- In criminal proceedings, witnesses are examined and cross-examined during the hearing. The case file is the responsibility of the prosecuting authorities. Nevertheless, parties to the proceedings, before or during trial, may bring to the authorities' or to the court's attention documents and related evidence.
- In administrative proceedings, the case file is the responsibility of the administrative authorities. However, parties to the proceedings, either at pre¬trial, or during trial, may bring to the authorities' or the court's attention documents and evidence, pertinent to the case. Witnesses are very rarely examined in administrative proceedings during the hearing. Witnesses may be examined before a Notary Public, following prior notification of the other party.
Information and evidence is produced before the court and taken on record in the form of documents, exhibits, and witness testimony. Admission and denial of documents is an important part of the process. Cross-examination of witness is a necessary part of the trial stage and frequently practiced.
Cross examination is available, only by request of the party.
Evidence is scrutinised by means of a cross-examination procedure which is conducted at the discretion of the counterparty subject to fulfilling the procedural timeframes and requirements. Should the witness be of interest, cross-examination will inevitably take place. Should any document or witness be brought at a time in which the production of evidence is closed, or if a witness cannot be cross-examined, the document or the witness statement may be expunged from the court proceedings.
In Action proceedings cross-examination of witnesses is routine and happens in virtually every case, In Application proceedings witnesses do not lead evidence in person, only on Affidavit, and as such there is no cross-examination.
Cross-examination is not practiced in Saudi Arabia. Saudi courts require written submissions and written response to any argument of other party.
Expert and fact witnesses can be called for cross-examination during the trial. If the person required to attend fails to do so, the person’s evidence may not be used or, the Court may issue a subpoena. (Although, the Court may dispense with compliance with the Rules.) If a witness is cross-examined, the party using the evidence may re-examine the person.
Before trial, parties can make preliminary motions to exclude or restrict the use of certain evidence. For example, parties can make a “Daubert motion” to keep the fact finder from hearing certain proposed expert witness testimony. Parties can also make a “motion in limine” to exclude or restrict other factual evidence.
During trial, each party can enter evidence relevant for the fact finder. Each party can offer documentary or testimonial evidence through live witnesses. The evidence can be scrutinized by the opposing party through cross-examination at trial, or through the introduction of other evidence that may reduce its weight.
For example, if a witness gives direct testimony, he or she will be subject to cross-examination from the opposing party. Additionally, if documentary evidence is introduced, the opposing party may introduce evidence that negates the documentary evidence, or which might reduce the relevancy of the documents. This practice normally forces the judge or jury to make a credibility determination before deciding on the merits. Additionally, to the extent the court plans to accept designated deposition testimony into evidence, the court will also allow the opposing party to introduce counter-designated testimony, placing the designated deposition testimony in proper context.