UPC: Supplementing expert opinion after inspection not possible

Van Loon had applied to inspect and preserve evidence at Inverquark’s exhibition stand in advance of a potential main action, which went ahead despite a protective letter having been filed previously by the defendant (see our earlier article). The defendant was concerned that the expert’s opinion did not adequately reflect their product and consequently requested that the court-commissioned expert who prepared the original inspection report should prepare a supplementary opinion. This request was denied in UPC_CFI_1325/2025 by the Düsseldorf local division of the UPC. 

The panel commented that, on one hand, Inverquark’s procedural rights after the ex-parte order for the preservation of evidence were adequately protected by the option to request a review under Rule 197.3 RoP and that, on the other hand, there was no legal basis for ordering the requested supplementary report. Although the expert had been commissioned by the court, they were not a “court expert” appointed under Rule 187 RoP, so there was no associated opportunity for the parties to comment on their report.

It was also observed that ordering a supplementary opinion would have been inappropriate. Applications for inspection and preservation of evidence are aimed at promptly yielding information used for gauging whether to initiate further action. Objections to substantive accuracy of the detailed description can then be raised in any subsequent main proceedings.

Nevertheless, although not directed at the expert, the court maintained some questions raised by the defendant on file: 

“Is it possible that the sketch in […] the expert opinion does not accurately represent the cross-section of the flow housing?”

“Did the expert have the […] protective letters [to hand] when preparing the expert opinion?”

It can be expected that these questions will be re-visited during main proceedings.