Hisham Almansoor – Associate ([email protected])
Experts may play an invaluable role in the conduct of litigation and arbitration proceedings in various jurisdictions around the world. Whether the proceedings contain fairly complex issues to be determined, or a party seeks an expert in a quantum related issue such as compensation, expert evidence may play a crucial role in both common law and civil law jurisdictions. Decree Law 28/2021 Amending Decree Law 14/1996 Issuing the Law of Evidence in Civil and Commercial Matters (the “Law of Evidence”) has been introduced in late September 2021 introducing amendments to the provisions relating to the use of experts and expert evidence in civil and commercial proceedings in the Kingdom of Bahrain.
Experts have long been instrumental in the conduct of litigation and arbitral proceedings in the Kingdom of Bahrain. Decree Law 12/1971 Issuing the Civil and Commercial Procedures Law first envisaged litigating parties’ use of experts and expert evidence under Chapter 7 of the Law, which was then repealed by the Law of Evidence more than two decades later.
Prior to the amendment coming into force on 1 October 2021, the prevailing practice of litigating and arbitrating parties was to use court-appointed experts whose role is to address specific questions raised by the parties on matters relevant to the court’s decision on technical, financial or technological issues relevant for one or both parties. Given the fact that the court is the appointing party, the expert’s mandate would be specified in the court’s decision, and the questions put forward will have to be approved by the same.
This article aims to provide an overview of the amendment with a focus on the provisions relating to expert evidence spanning Articles (132-143) of the Law of Evidence and comments on its broader implications where relevant.
Article 132 of the Law of Evidence
Comparing the text of the old and amended Article 132 can depict the paradigm shift introduced by the legislators in a bid to encourage parties to appoint their own experts. The old Article 132 of the Law of Evidence stipulated that “The Court may, whenever necessary, delegate one or three experts, and shall include in its decision the following: (a) a detailed statement of the expert’s task and the urgent measures he may take; (b) the guarantee to be deposited with court’s treasury for the expenses and fees of the expert, the amount which the expert shall be entitled to withdraw for his expenses, the party who is requested to deposit the guarantee, the deadline to make such deposit, which shall not be later than seven days as of the date of the decision to assign the expert; (c) the period determined for the expert to accept or reject his task, and which shall not be more than ten days from the date he receives a copy of the decision; (d) the period determined for the expert to submit his report, provided that said period does exceed sixty days from the date of commencement of the expert’s work, pursuant to Paragraph (1) of Article (142); (e) In urgent cases, the court may decide to reduce this period; (f) the date of the hearing to which the case was adjourned for pleadings, in case the deposit was made. Should the deposit not be made, the court shall schedule an earlier hearing to examine the case; and (g) in case the guarantee is paid, the case shall not be stuck off before notifying the litigants of the submission of the expert’s report according to the procedures established under Article (144)”.
The key aspect to note from the above is that the courts assume the role of appointing experts upon request of the parties. Claimants typically include a request for a court-appointed expert in the particulars of relief in their statements of claim.
The amended text of Article 132 of the Law of Evidence now reads “Parties may, on their own initiative, appoint experts, and it is permissible to do so prior to filing the claim; and it is permissible for the parties to appoint an independent expert or a joint expert as the case may be. An ‘expert’ refers to any natural or legal person who possesses sufficient knowledge and experience in the technical and professional matter that is presented to him and who is capable of producing an expert report on that matter. ‘Expertise’ refers to the professional opinion sought to prove an aspect [of the case] that requires specialist and practical knowledge”.
One may immediately discern the shift introduced by the legislator which now provides the possibility for parties to appoint an expert even prior to filing a claim. Prior to the amendment, it was still possible for parties to contract with an expert and later submit his report (although this would occur after the court authorizes the same), however, parties were primarily driven by the reduced cost in seeking a court-appointed expert. More importantly, the amended provision omits a reference to the court’s discretion to appoint an expert or experts. Although this does not negate any such discretion, this may signal the courts’ adoption of an increasingly selective approach in choosing when to appoint an expert.
The Amendment in Practice
Article 135 of the Law of Evidence stipulates that the parties to the proceedings may submit an expert report starting from the time the statement of claim is first registered and during the proceedings. The amendment also confirms the importance of an expert’s duty that is owed to the court. In particular, Article 141 stipulates that an expert’s duties, before all, is to assist the court. Any obligation of confidentiality pertaining to the documents given by the appointing party does not prejudice his obligation to report a crime or prevent it, despite the privilege and obligation of confidentiality that attaches to the expert’s duties. Moreover, the provision continues by limiting experts’ contractual liability for the party that has contracted with that expert to circumstances where the expert intentionally fails to perform his duties or has performed the same with gross negligence.
In several jurisdictions across the world, expert evidence may only be used with the court’s permission, as is the case in England and Wales. The shift introduced by the amendment to the Law of Evidence now enables parties to have greater control over how they may present their case to the civil courts, particularly where they are the appointing party and may define the expert’s scope of work on a specific legal issue. This may decrease the likelihood of prolonging the proceedings where a first instance judgment is based purely upon the documents presented by both parties, and one party may subsequently appeal the judgment and shall then take the initiative of appointing an expert.
Model Contract and Impartiality Declaration
Pursuant to Articles 134 and 138 of the amended Law of Evidence, a party who has instructed an expert is required to submit a model contract used to specify the expert’s duties generally as well as his role and scope of work for the proceedings. The party is also required to submit a short form completed by the expert declaring his independence and the absence of any factors which may prejudice his impartiality and the performance of his duties. Both of these documents are available on the Ministry of Justice website.
Powers of the Court
Article 139 of the Law of Evidence confers certain powers to the court where the proceedings will involve expert evidence. These powers are not particularly novel; the provision instead embodies the current practice.
The court is entitled to direct written questions to the expert to clarify any ambiguities and may also direct him/her to correct any errors from the report. The court may also allow the parties to submit written questions to the expert and for the latter to respond within the period of time set by the court. Other powers of the court include ordering a joint discussion on the findings of the report and the questions posed to the expert(s) as well as ordering a supplementary report if the court believes that the reports submitted in the case require a joint opinion by the experts.
The amendment carries positive implications for legal practice. Proceedings are likely to take far less time considering that by virtue of Article 135, a claimant may submit the report starting from the time the statement of claim is first registered. Said reports may also be of a greater quality if the legal representatives of the party appointing the expert is familiar with the expert’s standard of work. On the other hand, since the amendment is likely to introduce a growing trend of parties appointing their own experts and the court becoming increasingly selective on the cases where it chooses to appoint an expert, parties may be faced with greater costs in obtaining an expert report in the wake of an increased demand for said reports.
Another welcome aspect to this amendment is the possibility for parties to use experts located in Bahrain or foreign experts given that the appointing party may take that initiative prior to filing a case. In doing so, the courts would receive high quality expert reports which can enable better and more informed judgments.
Notwithstanding the above, the court is not obliged to follow the expert’s conclusions as per Article 142.
The year 2021 has brought with it significant legal developments which seek to change how law is practiced in the Kingdom of Bahrain as well as the general conduct of proceedings. We note that the amendment introduced by Decree Law 28/2021 is among the most significant developments in recent times.
In its Explanatory Memorandum, the Legislative and Legal Opinion Commission (“LLOC”) clarified that the amendment was introduced to streamline the process of hearing cases before the court and to reduce the time and effort spent by the parties of the dispute. It also aimed to increase Bahrain’s ranking in the World Bank’s index of enforcing contracts and the quality of the judicial system, in which the Kingdom scored 63.8/100 and 9/18 respectively according to its Doing Business 2020 Report. There is evidently ample room for improvement, therefore the LLOC believed that amending the Law of Evidence would improve Bahrain’s scores on the efficiency of its judicial system. Time will only reveal whether this has enhanced dispute resolution in the country.
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