Part 10 of a 10-part series for clients navigating a dispute before the DIFC Courts or in DIAC arbitration.
We'll close this series with three things that often catch unrepresented clients out: court- or tribunal-appointed experts, fee arrangements, and the temptation to let one professional wear two hats.
Court- or tribunal-appointed experts
The DIFC Courts have the power to appoint their own expert or assessor in appropriate cases, separate from anything either party has produced. Similarly, under the DIAC Arbitration Rules 2022, an arbitral tribunal may — after consulting the parties — appoint one or more independent experts to report on specific issues it identifies, alongside or instead of party-appointed experts.
This kind of appointment is usually made only after the parties have had a chance to comment, and the costs of the tribunal's expert typically form part of the overall costs of the case — often shared between the parties in the first instance.
No conditional or success-based fees
As covered back in Part 5: an expert should never be engaged on a conditional, contingency, or success-based fee for their role as an independent expert witness. This applies no matter who appointed them — you, the other side, or the tribunal jointly. If anyone ever suggests a "no win, no fee" style arrangement for expert evidence, treat it as a red flag and get independent legal advice before proceeding.
Keeping the expert and advocate roles separate
Unlike some lower-tier tribunals in other jurisdictions, which occasionally permit a dual expert-advocate role in the interests of access to justice, both the DIFC Courts and DIAC arbitral tribunals generally expect the expert witness role to stay entirely separate from the role of advocate or legal representative.
Asking your expert to also argue your case, draft your pleadings, or represent you at a hearing risks compromising the perceived independence of their evidence — and independence is the entire reason their opinion carries weight in the first place.
If you're unrepresented, this doesn't mean you need a full legal team before you can move forward. It does mean being clear, in your own mind and in your written instructions, about who is playing which role — and seeking independent legal advice, even limited one-off advice, before assuming one professional can properly do both jobs in your matter.
A final note
This series summarises general principles current at the time of writing. The Rules of the DIFC Courts, the DIAC Arbitration Rules, and the IBA Rules on the Taking of Evidence are all subject to amendment, and your specific procedural order or terms of reference will always take precedence. Before relying on any point in this series, confirm the current position with your expert, the relevant institution, or a qualified lawyer.
This concludes our 10-part series on working with an expert witness in DIFC and DIAC disputes.