INDIA Law and Practice Contributed by: Pravin Anand, Achuthan Sreekumar and Rohil Bansal, Anand and Anand
Section 49(1)(c) of the Advocates Act, 1961 cat - egorically mentions the standard of professional conduct and etiquette to be observed by advo - cates. Non-compliance can invite disciplinary proceedings and even debarment from practis - ing law.
The first kind of expert witness is a private expert witness, who appears on behalf of a private par - ty (ie, plaintiff/defendant). For instance, in cases involving pharmaceuticals or telecommunica - tions patent issues, parties file the evidence affidavit of an independent expert witness, who is someone of stature (such as the dean of a university, etc). Their testimony (ie, evidence affi - davit) is also prepared in the same way as for other witnesses. An expert witness of one party will be cross-examined by the advocate of the other party, and vice versa. Independent experts charge fees depending on their expertise, expe - rience and stature. Also, Chapter XI, Delhi High Court (Original Side) Rules, 2018 permit an expert witness to testify before it. Further, the Delhi High Court Intellectu - al Property Rights Division Rules, 2021 Section 16 notes that, in the case of evidence by experts, this may be recorded by resorting to procedures such as hot-tubbing or other procedures as the Court deems fit. Under 39(1) of the Bharatiya Sakshya Adhiniyam, 2023, when a court/judge is confronted with an issue that requires expert advice and opinion for resolution, they can refer that issue to an expert (eg, an expert on handwriting, fingerprinting, for - eign law, etc).
6. Trial 6.1 Bench or Jury Trial
There is no jury system in India. Cases are decid - ed by judges, who are the presiding officers. 6.2 Trial Process A trade secrets case does not have a special trial process. It is governed by the law pertain - ing to civil commercial lawsuits, as previously discussed. The trial process can be briefly sum - marised as follows. • It commences with the court framing the main issues. • Thereafter, the plaintiff is directed to file evidence by way of an affidavit of its wit - nesses. This is followed by cross-examination of the plaintiff’s witnesses by the defendant’s advocate. • The defendant then files the affidavits of its witnesses, who will be cross-examined by the plaintiff’s advocate. • Once the cross-examination of the witnesses of both parties concludes, the matter is listed for final arguments. • After hearing the final arguments, the court passes the final judgment. 6.3 Use of Expert Witnesses Expert witnesses do appear before Indian courts on a regular basis.
7. Remedies 7.1 Preliminary Injunctive Relief
In Dr Sudipta Banerjee v LS Davar and Company and Others, FMAT 735 of 2021, the Hon’ble Cal - cutta High Court held that the remedies available to the owner of trade secrets include: • an injunction preventing the licensee from disclosing the trade secret;
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