Part 5 of a 10-part series for clients navigating a dispute before the DIFC Courts or in DIAC arbitration.
Before your expert starts any substantive work, there are a handful of things you should expect — and can reasonably ask for — in writing. Skipping this step is one of the more avoidable ways clients end up with problems later.
What to get on record early
- Prompt written confirmation from the expert of whether they accept the instruction.
- Confirmation of competence and capacity — that the expert has the relevant qualifications, experience, and available time to complete the assignment to the standard and timetable required.
- A conflict check. Has the expert, or their firm, had any prior involvement with the other party, the property or project in dispute, or anyone connected to it? Any doubt at all should be disclosed to you in writing before instructions are accepted.
- A written scope of assignment — the specific questions or issues the expert has actually been asked to address.
- The basis on which fees will be charged.
Keep all of this correspondence on file. If your expert's independence or instructions are ever challenged — and they sometimes are — the tribunal or the other side may reasonably expect to see the written record of exactly what the expert was asked to do, and when.
A word on fees
An expert giving opinion evidence to the DIFC Courts or a DIAC tribunal should not be engaged on a conditional, contingency, or success-based fee for that role. A fee that rises or falls with the outcome of your case creates an obvious incentive problem, and is likely to undermine the weight given to the expert's evidence — it may also be objected to by the other side or questioned directly by the tribunal.
If anyone ever suggests a "no win, no fee" arrangement for expert evidence specifically, treat it as a warning sign rather than a convenience.
Next: Part 6 — Inspections and Evidence Gathering.