Tribunal Practice Notice (TPN 3/2010)
Requests for cross-examination
1. The registrar has reviewed his practice for dealing with requests for cross- examination of a witness. This Notice sets out the new practice.
2. Section 69 of the Trade Marks Act 1994 states:
"69. Provision may be made by rules-
a) as to the giving
of evidence in proceedings before the registrar under this Act by affidavit or
statutory
declaration;
b)
conferring
on the registrar the powers of an official referee of the Supreme Court as regards the
examination of
witnesses on oath and the discovery and production of documents; and
c)
applying
in relation to the attendance of witnesses in proceedings before the registrar the rules
applicable
to the attendance of witnesses before such a referee."
This is underpinned by rule 65 of the Trade Marks Rules 2008 which states:
"65. The registrar shall have the powers of an official referee of the Supreme Court as regards-
a) the attendance of witnesses and
their examination on oath; and
b) ….."
3. In Hokko Chemical Industry Co Ltd v Hokochemie GmbH (O-158-08), Geoffrey Hobbs Q.C. sitting as the Appointed Person considered the circumstances in which it was appropriate to order the cross-examination of a witness and stated:
" [The question is not] whether cross-examination should be allowed, but whether it should be refused."
He went on to set out the factors to be considered when deciding whether or not cross examination is appropriate. He said:
"[The decision taker] should turn his mind to the anticipated advantages and disadvantages of refusing to allow it to take place. This is not only a value judgment, but also a case management decision. The decision taker needs to identify the relevant factors and grade them according to the weight that (s)he thinks they ought properly be given in relation to the question whether cross-examination should be refused."
4. Thus, whilst there is a presumption in favour of cross-examination, the registrar has to be satisfied that it is appropriate in all the circumstances. To ensure the registrar has the necessary information on which to base his decision and to ensure the effective conduct of proceedings, all parties making a request for cross-examination should, with immediate effect:
- Make the request in writing at the earliest opportunity;
- Give the name of the witness(es) they seek to cross-examine;
- Give reasons why cross-examination of each witness is requested;
- Set out the specific issues to which cross-examination would, if allowed, be directed;
- Explain the relevance of those issues to the matters to be decided;
- Give an estimate of the time any cross-examination is expected to take;
- Copy the request to any other party to the proceedings.
For clarification, as regards point 4 above, the registrar does not expect parties to provide a list of the questions to be asked.
5. The other party(ies) to the proceedings will have the opportunity to comment on the request before a decision is made. The hearing officer responsible for the case will then issue directions indicating whether cross-examination is to be permitted and, if so, setting out the scope for its conduct. If appropriate, a case management conference will be appointed before such directions are given.
Contact for enquiries
6. Please direct any enquiries about this notice to:
Al Skilton
Deputy Head
of Tribunal Section
Room 2G52
Concept House
Cardiff Road
Newport
South Wales
NP10 8QQ
United Kingdom
Tel:
+44 (0) 1633
814585
Fax: +44 (0) 1633 811175