Expert Reports In Saudi Courts

Expert Reports in Saudi Courts: Appointment, Contents, Challenge and Weight

When a dispute turns on accounts, engineering defects, valuation or technical records, the court may refer the technical question to an expert, and the expert’s report can shape the outcome. In Saudi Arabia this process is governed by the Law of Evidence, issued by Royal Decree No. (M/43) dated 26/5/1443H and in force according to the Bureau of Experts platform, which devotes Part Ten, Articles 110 to 124, to expertise. The Law is supplemented by the Procedural Guides of the Law of Evidence and by the Rules Regulating Expert Affairs before the Courts, both issued by Minister of Justice Decision No. (921) dated 16/3/1444H, published in the Official Gazette Umm Al-Qura on 3/4/1444H (28 October 2022), and in force according to the Ministry of Justice legal portal, which shows no amendment to either of them or to the Law itself. (The Arabic texts are the authoritative versions; the quotations below are translated from them.)

The legal framework for expert evidence

The texts that now govern expertise

Expertise used to be regulated within the Law of Civil Procedure and the Commercial Courts Law, but Article 128 of the Law of Evidence provides that it “repeals Part (Nine) of the Law of Civil Procedure” and “Part (Seven) of the Commercial Courts Law”, together with “all provisions that conflict with it”. The rules on appointing an expert, the report and its weight are therefore now found in the Law of Evidence for the general and the commercial courts alike. Article 126(1) of the same Law requires the Minister of Justice, in coordination with the Supreme Judicial Council, to issue “the rules regulating expert affairs before the courts” and “the procedural guides and decisions necessary to implement this Law”, and Article 125(1) provides that the Law of Civil Procedure or the Commercial Courts Law, as the case may be, applies to evidentiary procedures “in matters for which no provision is made in this Law.”

Who may act as an expert

The Rules Regulating Expert Affairs apply, under Article 2, to “experts who undertake expert work before the judicial bodies in accordance with the Law of Evidence”, and Article 3(1) provides that “no expert who is not included in the list may undertake expert work”, the list being that of licensed experts. Article 3(2) allows expert work to be assigned to a government body. Article 4 establishes within the Ministry a unit “competent for expert affairs”, and Article 5 entrusts it, among other tasks, with licensing experts, classifying them and preparing lists of them, evaluating and inspecting their work, and investigating complaints against them. On the choice of the individual expert, Article 110(2) of the Law requires that “the suitability of his technical knowledge and experience to the subject of the dispute” be taken into account, and Article 109 of the Procedural Guides repeats that requirement “without prejudice to the rules regulating expert affairs before the courts.”

When and how the court appoints an expert

The power to appoint and its limits

Article 110(1) of the Law of Evidence provides that the court may, “of its own motion or at the request of one of the parties”, decide to appoint one or more experts “to give an opinion on the technical matters required for the determination of the case.” The power is therefore defined by the nature of the question, which must be technical and necessary for the decision, and not by the type or size of the dispute. Article 113(1) of the Procedural Guides draws the boundary clearly: the expert’s opinion “is confined to technical matters and does not extend to any opinion on a legal matter”, and if the expert finds that the mission includes legal matters, he must notify the competent administration immediately. Where the technical answer depends on how the court resolves a legal point, Article 113(2) requires the expert to identify that point and give “the technical opinion according to each possibility.”

The Law also provides two lighter alternatives. Under Article 123(1), the court may, by a decision recorded in the minutes, appoint an expert to give an oral opinion “on a simple technical matter that does not require lengthy or complex work”, and may decide that the opinion be given in writing. Under Article 124, the court may rely on “an expert report submitted in another case” instead of appointing an expert, “without prejudice to the right of the parties to discuss what that report contains”, and Article 132 of the Procedural Guides requires the court in that case to allow the parties to review and discuss the report and to explain its connection with the dispute.

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The appointment decision and the choice of expert

Article 111 of the Law requires the operative part of the appointment decision to include “a precise statement of his mission, his powers, and the urgent measures he is permitted to take”, and Article 108(1) of the Procedural Guides adds that the decision must also name the party required to deposit the expert’s fee. Article 108(2) of the Guides then entrusts the competent administration with the details of implementation, including defining the type of expertise and the details of the mission, nominating and appointing the expert, setting the fee and the period for its deposit, setting the deadlines for “the initial report and the final report”, notifying the parties and supervising the expert’s work.

The parties may choose the expert themselves. Article 110(3) of the Law provides that “if the parties agree on choosing one or more experts, the court shall approve their agreement”, and Article 110(2) of the Guides provides that the agreed expert is assigned “if he is licensed” under the Rules Regulating Expert Affairs. Where the parties agreed on an expert before the claim, Article 110(1) of the Guides requires them to invoke that agreement before the expert is appointed, and where they agreed to carry out the expertise before the claim was registered, Article 110(3) requires the expert’s report to be submitted with the claim. Without agreement, the administration nominates the expert under Article 111(1) of the Guides, and Article 111(3) provides that “in all cases, the decision appointing the expert is final and not subject to objection.”

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The expert’s fee

Article 112(1) of the Law allows the court, when required, to set the fee for the expertise, the party who must deposit it and the period for doing so. If that party does not deposit it, Article 112(2) allows the other party to deposit it without prejudice to his right of recourse, and if neither does, Article 112(3) allows the court to stay the case until the deposit is made, where the decision depends on the expertise, or to decide that the defaulting party has lost the right to rely on the appointment decision if his excuses are not accepted. Article 115(1) of the Procedural Guides sets the periods: the party charged must deposit the fee “within two days of being notified”, and failing that, the other party may deposit it “within three days”. At the end of the case, Article 122 of the Law places the fee on “the party who lost the claim that was the subject of the expertise”, and where the loss is partial, each party bears it in proportion to his loss.

Independence of the expert

Disclosure

Article 113 of the Law of Evidence requires the expert, before starting his mission, “to disclose any relationship he has with the parties to the case or any interest he has in it”, and provides that if he fails to do so the court shall rule to remove him and order him to return what he received, by a ruling that is “final and not subject to objection”. Article 112 of the Procedural Guides requires that disclosure to be made in writing before appointment, gives the parties a copy of it, and excludes an expert who does not disclose or whose disclosure reveals an impediment.

Recusal

Article 114(1) of the Law allows any party to request the recusal of the expert “if there is a reason that makes it likely that he cannot perform his mission impartially”, and lists particular grounds, including kinship or marriage to a party up to the fourth degree, acting as a party’s agent in his private affairs, being his guardian or the trustee of a waqf or in a similar position, working for a party, or having a dispute with one of them unless that dispute was brought after the appointment for the purpose of recusal. Under Article 114(2), a party at whose choice the expert was appointed may request recusal only if the ground arose after the appointment, and in all cases a request is not accepted “after the closing of pleadings”. Article 116(2) of the Procedural Guides treats the expert as chosen by a party when the experts were offered to him and he chose one, when the expert was among his nominees, or when he did not object to the choice. Article 114(3) of the Law requires the court to decide the request within three days of the expert’s answer or of the end of the period for it, and makes the decision final.

How the expert carries out the mission

The expert’s powers and timetable

Article 115 of the Law of Evidence gives the expert the power to hear the parties and their observations, and anyone else he sees fit to hear if the appointment decision permits it, to request from the parties or others the books, records, documents, papers or items he considers necessary, and to inspect the premises, places and items his mission requires. Article 118 of the Procedural Guides provides that, unless the decision states otherwise, the appointment decision is deemed to include these powers. Under Article 119(1) of the Guides, the expert must set a date to begin his work “not exceeding five days from the date of his notification of the appointment” and notify the parties and the administration, and under Article 119(2), where the work requires meeting the parties, he notifies them of the time and place and proceeds “even in the absence of the parties, once they have been duly notified.”

Refusal to cooperate and changes in scope

Article 116(1) of the Law provides that no person may, without legal justification, refuse to enable the expert to perform his mission, that the expert must refer any refusal to the court, and that the court may decide what it sees fit, including compelling the person who refuses “and using compulsory force when necessary”. Article 122(1) of the Procedural Guides adds that where a party or another person refuses to hand over or show records or documents, or to allow an inspection, the expert records that in his report and completes his mission, “stating the effect of that on his technical opinion.” Under Article 116(2) of the Law, the expert must also refer to the court if an obstacle prevents him from continuing or if the matter requires widening the scope of his mission, and Article 123 of the Guides requires the court to decide such a request within two days by a decision that is final.

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Delay and removal

Article 118(1) of the Law provides that if the expert does not start his mission without an acceptable excuse, falls short in performing it, or delays depositing the report without justification, a warning is sent to him within five days, and if he does not respond within five days of being notified of it, the court shall rule to remove him and order him to return what he received. Under Article 118(2), that ruling is final, and under Article 118(3), if the court finds that the delay is due to the fault of a party, it shall impose on that party a fine “not exceeding (ten thousand) riyals”, and may rule that he has lost the right to rely on the appointment decision.

What the expert report must contain

The requirements of the Law

Article 117(1) of the Law of Evidence requires the expert to prepare a report on his work that includes a statement of the mission assigned to him “in accordance with the appointment decision”, the work he carried out “in detail”, the statements of the parties and others and the documents and evidence they submitted “and the technical analysis of them”, the opinions of any experts he consulted, and “the result of his work and his technical opinion, and the grounds on which he relied, precisely and clearly.” Under Article 117(2), where there are several experts they must prepare a single report, and where their opinions differ, the report must state each expert’s opinion and his reasons.

The details required by the Procedural Guides

Article 124 of the Procedural Guides sets out the contents in detail. The report must state the court, the case particulars and the relevant dates, summarise the dispute and the tasks assigned, identify the parties and who attended or was represented, name the expert and any experts consulted with their qualifications, and describe in chronological order the work carried out, including the parties’ statements signed by them, the documents and records reviewed or received, the inspections made, and the questions and requests for information addressed to anyone. It must also state “any rules, regulations, standards or scientific sources” relied on, the observations or objections submitted by the parties on the initial report “with a statement of his opinion on them and their effect on the result”, and “a list of the documents on which he relied in the report, distinguishing between the documents submitted by the parties and those collected by the expert”. Finally, under Article 124(9), the report must state the expert’s opinion on each question in his mission “and the basis of that opinion separately”, and where there are several opinions on the technical question, “a summary of these opinions and the reasons for the expert’s preference for the opinion he chose.”

Reviewing and challenging the report

Deposit and notice to the parties

Under Article 125 of the Procedural Guides, the expert submits his report to the competent administration within the set period, the administration checks that it meets the requirements of Article 124 and accepts its deposit or returns it for completion, and the report “is deemed deposited from the time the administration accepts its deposit.” Article 126(1) requires the parties to be notified of the deposit “within twenty-four hours following acceptance of the deposit”, and Article 126(2) gives them access to the report and its attachments immediately, with the right to obtain a copy.

Written questions and the final report

The parties’ main tool is set out in Article 126(3) of the Guides: any party may discuss the expert’s report “by submitting written questions”, and those questions “must be submitted once, within a period not exceeding five days from the date of acceptance of the deposit.” Article 126(4) then requires the expert to answer the questions, state “their effect on the result he reached”, and deposit his final report, including his initial report and the parties’ discussion, “within a period not exceeding ten days.” Under Article 126(5), the administration then prepares its observations on the report and submits it to the court with all the related documents. Because the questions may be submitted only once and within a short period, a party who wishes to challenge the report’s scope, its documentary basis or its method must do so in that single submission, and the contents required by Article 124, such as the list of documents relied on, the sources applied and the reasons for preferring one opinion, are the points against which the report can be tested.

The court’s powers after the report

The court’s own powers continue after the final report. Article 120 of the Law of Evidence allows the court, of its own motion or at a party’s request and “at any stage of the case”, to summon the expert to a hearing to discuss his report orally or in writing and to put questions to him, to order him to complete the deficiencies in his work and correct any shortcomings or errors, or to appoint one or more other experts to complete the work, correct its errors “or re-examine the mission”. Article 128(1) of the Procedural Guides provides that the expert’s mission ends with the deposit of the final report, and Article 128(2) preserves the court’s right “at any stage of the case” to discuss the expert, ask him to complete his report or put questions to him, within the limits of his mission.

The weight of the expert report

The report does not bind the court

Article 121(2) of the Law of Evidence provides that “the expert’s opinion does not bind the court”, and that if the court does not adopt it in whole or in part, “it shall state the reasons for that in its judgment.” Article 130(1) of the Procedural Guides adds that the court must specify the parts it did not adopt and why, and that “in all cases the court may not itself decide what it did not adopt where deciding it requires a purely technical opinion”, in which case it may return the mission to the expert or appoint another expert. The court therefore keeps the final word on the case, but where it departs from the report on a purely technical question, it must obtain a further technical opinion and cannot substitute its own.

When the parties agree to accept the report

The rule changes where the parties agree in advance. Article 121(1) of the Law provides that the parties may, “even before the claim is brought”, agree to accept the result of the expert’s report, and that the court shall give effect to their agreement “unless the report contains what is contrary to public order.” Under Article 129 of the Procedural Guides, a party who relies on such an agreement must submit a written copy of it, and where the agreement is made after the dispute has arisen, it may be made by a memorandum signed by the parties or orally and recorded in the minutes. Such an agreement narrows the room for challenge considerably, which makes it a decision to be taken with care.

The expert’s liability

Article 121(3) of the Law allows the court, where it does not adopt the report in whole or in part because of the expert’s negligence or error, to order him to return all or part of what he received, without prejudice to disciplinary penalties and to the right of those concerned to claim compensation, and Article 130(2) of the Guides requires the court to state the aspect of negligence or error. Article 133 of the Guides gives jurisdiction over a compensation claim arising from the expert’s work to the court that appointed him, provided the claim is brought “before the lapse of (ninety) days from the judgment becoming final.” Article 134 of the Guides adds that what the expert records as having been done before him or received from those concerned, within the limits of what he is authorised to record, “may not be challenged except by a claim of forgery.”

Conclusion

The Law of Evidence now governs expert evidence before both the general and the commercial courts, and its Procedural Guides and the Rules Regulating Expert Affairs supply the detail. The court appoints an expert only on technical questions necessary for the decision, through a decision that must define the mission precisely, and the expert must be licensed, must disclose any relationship with the parties, and may be recused on the grounds in Article 114. His report must set out the mission, the work done, the documents relied on, the sources applied and the basis of each opinion, and the parties may test it through written questions submitted once within five days of its deposit, after which the expert must answer and file a final report within ten days. The court is not bound by the report but must give reasons when it departs from it and cannot replace a purely technical opinion with its own, while an agreement between the parties to accept the result binds the court unless the report is contrary to public order. A party who understands these texts can use the appointment stage to shape the mission, the recusal and disclosure rules to secure an impartial expert, and the single round of written questions to correct the report before it reaches the court in its final form.

Frequently asked questions

Can a Saudi court appoint an expert without a request from the parties?

Yes. Article 110(1) of the Law of Evidence allows the court to appoint one or more experts “of its own motion or at the request of one of the parties” to give an opinion on the technical matters required for the determination of the case.

Is the expert report binding on the court?

Not as a rule. Article 121(2) of the Law of Evidence provides that the expert’s opinion does not bind the court, which must give reasons if it does not adopt it. The exception is an agreement between the parties to accept the report’s result under Article 121(1), which the court must give effect to unless the report contains what is contrary to public order.

Can the parties choose the expert?

Yes. Under Article 110(3) of the Law of Evidence, the court approves the parties’ agreement on choosing an expert, and under Article 110(2) of the Procedural Guides the agreed expert is assigned if he is licensed under the Rules Regulating Expert Affairs before the Courts.

Who pays for the expert?

The court sets the party who must deposit the fee under Article 112(1) of the Law of Evidence, and Article 115(1) of the Procedural Guides requires the deposit within two days of notification. Under Article 122 of the Law, the fee is ultimately borne by the party who lost the claim that was the subject of the expertise, or shared in proportion to each party’s loss.

How and when can a party challenge the expert report?

Under Article 126(3) of the Procedural Guides, a party may discuss the report by submitting written questions once, within five days of the acceptance of the report’s deposit, and the expert must answer them and file a final report within ten days under Article 126(4). The court may also, under Article 120 of the Law, summon the expert for discussion, order him to complete his work, or appoint another expert.

Can a party ask for the expert to be removed?

A party may request recusal on the grounds in Article 114(1) of the Law of Evidence, but not after the closing of pleadings, and a party who chose the expert may do so only for a ground that arose after the appointment. Separately, the court must remove an expert who fails to disclose a relationship or interest under Article 113, or who does not respond to a warning after failing to perform or delaying his report under Article 118.

Can the expert give an opinion on legal questions?

No. Article 113(1) of the Procedural Guides confines the expert’s opinion to technical matters and provides that it does not extend to any opinion on a legal matter. Where the technical answer depends on a legal point, Article 113(2) requires the expert to give his technical opinion on each possible outcome of that point.