18 Sep 2012

EXPERTS AND EXPERTISE

Authored by: Mustafa Abu Idris

EXPERTS AND EXPERTISE

Court appointed experts play an important role in UAE Courts with regards to evidential issues in respect of all areas of law especially civil and commercial laws, and even in some criminal cases if the Prosecutor General deems it necessary to appoint an expert in relation to cases involving alleged criminal breach of trust. 
 
In brief

  • According to Articles 69 and 70 of the Evidence Law, where necessary, the court or parties may delegate one or more experts to provide their opinion on matters required for deciding a case.
  • The court has no alternative other than to appoint an expert if this is the only viable option for the concerned party to evidence his claim or defence.
  • In accordance with Article 71/1 of the Evidence Law, the court is authorised to define the expert’s mission.
  • The judge of urgent matters is not concerned with the detail of the expert’s report, and the parties may only contest to the content of the expert’s report before the court of merits.
  • The expert’s report is not binding on the court of merits and it can therefore be rejected totally or partially as per the judgements of the Dubai Supreme Court.
  • Referring cases to experts for technical matters for which the court must rely on the expert’s expertise is acceptable, however, the expert’s report should not be adopted without proper interrogation by the court and parties.

The appointment of the expert is referred to the court, unless the parties have previously agreed to appoint a specific expert within the timeframe specified by the court. The parties are also entitled to request the appointment of an expert and the court may either accept or reject such a request. 
 
These rules are contained in articles 69 and 70 of the Federal Law No. 10 issued on 15 January 1992, as amended (“Evidence Law”). Article 69 of the Evidence Law reads: ‘‘When necessary, the court may delegate one or more expert(s) from among the state civil servants, or from the experts registered in the schedule of experts, to have their opinion on matters required for deciding the case. The court shall assess the amount to be deposited with the court treasury on account of the expert’s expenses and his remuneration, specify the party liable to effect such deposit, the period allowed to make the deposit and the amount which the expert is allowed to draw for his expenses’’. And article 70 of the same law reads: ‘‘If the parties agree to select an expert or more, the Court would approve their agreement. Excepting this case, the Court will select the expert from among those admitted before it, unless otherwise necessitated by special circumstances and, if this be the case, the court shall have to specify these circumstances.’’
 
If the court rejects the request it must provide an explanation as to the reasoning for its rejection, without which this would otherwise be deemed bad judgment in reasoning and denying the right of defence.
 
Despite the wide range of discretion for the court in appointing the expert, the court has no alternative other than to appoint an expert if this is the only viable option for the concerned party to evidence his claim or defence. This rule was adopted by the Dubai Supreme Court and reads: ‘‘It is established by the judgments of this court that although the parties’ request for appointment of an expert to prove a certain fact is not a matter of right which must be granted by the court, if this is the only available method for proving matters which may be proved by non-documentary evidence and the fact required to be proved is instrumental and effective in the dispute resolution, the court must accept the request or indicate in its response why it should not do so based on reasonable grounds” (petition no. 86/2008 vol. 19, p.1041).

In accordance with Article 71/1 of the Evidence Law, the court is authorised to define the expert’s mission as it reads: ‘‘should the Court decide to delegate an expert or more, its decision must include the following: (1) An accurate statement of the expert’s duties and the urgent measures he is allowed to take.’’
 
The expert’s assignment is restricted to factual issues and technical matters. Such matters may be beyond the knowledge of the court and therefore cannot be determined by the judges. If the expert does not abide by his assignment and (unintentionally or not) interferes with the legal subject, the report shall be deemed unacceptable. If the court should suggest otherwise, its judgment would be dismissed.  In petition no. 22/2005 vol. 16, P823 the Dubai Supreme Court held that ‘‘determining the legal description of a building contract and whether the same is within the scope of Article 886 of the code of civil transactions or is a fixed price contract according to Article 887 of the same law, is a legal issue which should be determined by the court without consulting an expert’’.
 
Statements of witnesses before the expert are considered circumstantial evidence that should be considered by the court, along with the other available evidence, in accordance with established judgments of the Dubai Supreme Court. However, it is known that in the assignment of the expert, witnesses are seldom called upon to give their testimony under oath. However, where a witness could be biased or malicious, the testimony in such circumstances may not be considered reliable, unless taken before the court and under oath. 
 
Judgments of the Dubai Supreme Court allowed the expert to seek the assistance of others in finalising his report. The Courts do not determine how an expert shall prepare his report, and he is absolutely free to do so as he thinks fit and in accordance with the objectives of his assignment.
 
In practice, many experts reassign employees to accomplish the assignment, having them call the parties, receive the documents, hear the witnesses and even draft the report. It is a widely held view that in such circumstances where the employee or assistant of the expert is not themselves an “expert” and is also not under oath, they cannot be deemed qualified and the report itself should be consequently invalid.
 
The expert’s report is not binding on the court,  and it can therefore be rejected totally or partially as per a judgment of the Dubai Supreme Court that states: ‘‘An expert’s opinion is no more than a piece of evidence which is subject to evaluation by the court without any supervision in this respect. The court is free to accept a part and reject another part of the report as the court may only adopt what it is satisfied with. The court may also determine what is left undetermined by the expert’s report so long as the facts of the case support such determination’’. (Cassation petition no. 203/2001, vol. 12, p. 683).
 
The court in many cases appoints the expert on the basis of their role, irrespective of their specialisation. The rules of the Dubai Supreme Court state that specialisation is of no significance with regards to the assignment of the expert. 
 
Neglecting the specialisation of the expert can often be confusing to the parties. A qualified civil engineer is best placed to give his opinion in a dispute related to engineering matters, likewise an accountant would be best suited to advise on problematic matters relating to his own field, and neither can perfectly perform the work of the other. It is therefore important to consider the specialisation in each case. 
 
In some instances, either of the parties may request the appointment of an expert to prove factors that may subsequently be the grounds for a substantive suit. The concerned party derives the right for such request from Article 68 of the Evidence Law that reads:
 
‘‘ 1- Person fearing the characteristics of a certain incident which might become the subject of a future dispute before courts, to be lost may request under standard procedures the summary judge to move to inspect such characteristics. The above procedure shall be observed in such cases. 
 
2- The summary judge may in the abovementioned case, delegate an expert to move, inspect and hear witnesses without oath after which the judge shall fix a session of hearing the litigation comments on the expert’s report and work. Procedures provided in section ‘‘Expertise’’ hereof shall apply.”  
 
One question which also arises is whether the substantive suit can be instigated despite the closing of a file by the summary judge. The Dubai Supreme Court provided a positive view on this  issue under cassation petition no. 281/2004, vol.16, p.284 that rules: ‘‘Article 68 of the evidence law indicates that the status quo determination action is a provisional action intended to avoid a risk of losing certain features which cannot be achieved by following the normal litigation process, in preparation for filing a substantive action. A judgment passed under Article 68 does not determine any dispute or affect the substantive rights. It does not affect the parties right to take recourse to the courts of merits for resolution of the dispute. The urgent matters judge has no jurisdiction to consider the substantive objections which the parties may raise against the expert’s report and he should leave this task to the courts of merits. The urgent matters judge accordingly has no jurisdiction to adopt the report by an expert appointed in the course of a status quo determination action.”  
 
The above cassation judgment affirms that the judge of urgent matters is not concerned with the detail of the expert’s report, and the parties may only contest the content of the expert’s report before the court of merits.
 
The report produced before the judge of urgent matters is not binding on the court of merits, in accordance with the principles of the Dubai Supreme Court in the cassation petition no.184/2005, vol.16, p.2143 that reads; ‘‘an expert’s report filed in an action for determining the status quo is no more than part of a body of evidence upon which a party may rely in the substantive case before the court of merits. The court of merits may accept the report or reject it and may appoint an alternative expert even if his assignment is to be the same as that of the previous expert. It is also established that the role of the court in a status quo determination action is deemed terminated by lodging of the expert’s report and the parties’ observation in its respect’.”

Therefore we can say that the expert’s report before the judge of urgent matters is of no value in the court of merits.
 
This article provides only a summary of practical issues relating to the appointment of the experts before the courts. In conclusion, referring cases to experts for technical matters for which the court must rely on the expert’s expertise is acceptable, however, the expert’s report should not be adopted without proper interrogation by the court and parties.