If you doubt the expert's neutrality, do not wait for the report and then object to it. Recusal has a ground you must state, a set procedure, and a cut-off after which the door closes.
Appointment is final, so recusal is the route
The decision appointing the expert is final and not open to objection (Procedural Rules of the Law of Evidence, Article 111, paragraph 3). So do not write an objection to the appointment itself. Write a reasoned recusal request.
What justifies recusal?
The Law of Evidence sets one general standard, then gives examples of it:
"Any of the litigants may request the recusal of the expert if there is a reason concerning him that makes it likely he cannot perform his task impartially. In particular, the expert may be recused if he is a relative or in-law of one of the litigants up to the fourth degree, or an agent of one of them in his private affairs, or a guardian or custodian of one of the litigants, a waqf administrator, or someone in a similar position, or if he works for one of the litigants, or has a dispute with one of them, unless that dispute was brought after the expert's appointment with the intent of recusing him."
Law of Evidence, Article 114, paragraph 1 (translation; the Arabic text is the original)
The words "in particular" indicate that the examples are not exhaustive. The standard is any reason that makes partiality likely, and the examples are its clearest forms.
Note the final limit: a dispute that a party brings against the expert after the appointment, in order to have him recused, does not count as a ground.
Compare with the expert rules
The Rules Regulating Expert Affairs Before the Courts prohibit an expert from acting in three situations (Article 20):
- Cases in which he has a connection or an interest, or in which he is an agent of one of the litigants, or a guardian, custodian, waqf administrator, or someone in a similar position, or works for one of the litigants, or has a dispute with one of them.
- Cases in which one of the litigants is his relative or in-law up to the fourth degree.
- Cases in which he has previously given an opinion.
This is a list of prohibitions on the expert, not a list of recusal grounds. It still helps you build the request: if the expert falls within one of these situations, you have a reason to present under the general standard in Article 114 of the Law. The third situation, having already given an opinion in the case, does not appear in the Law's examples.
The rules also require the expert to perform the task impartially and objectively (Article 19, paragraph 3) and state that the expert is independent in his work (Article 21).
Disclosure: your first source of grounds
Before appointment, the expert submits a written disclosure to the court, and the competent department gives the litigants a copy. If the expert does not disclose, or the disclosure reveals something that prevents the appointment, the expert is excluded (Procedural Rules, Article 112).
Read the disclosure as soon as it arrives, and compare it with what you know about the expert and your opponent. If it emerges after appointment that the expert concealed a relationship or interest, the Law attaches a separate consequence, independent of recusal:
"Before starting the task, the expert must disclose any relationship with the parties to the case or any interest in it. If he fails to do so, the court shall rule to remove him and to return the amounts he received."
Law of Evidence, Article 113 (translation; the Arabic text is the original)
So if your ground for recusal is an undisclosed relationship, also raise the failure to disclose in your request and ask for Article 113 to be applied.
How is the request filed?
Article 116 of the Procedural Rules sets out the path:
- The request is filed with the competent department and must state the ground for recusal and any supporting evidence.
- The expert responds within two days of being notified and stops work immediately until the request is decided.
- The competent department refers the request to the court with a report on the request and on the expert's response, if any.
- The court decides the request in the record without the parties attending. Its decision is final, and the litigants and the expert are notified of it.
The Law of Evidence sets the time for a decision: three days from the date the expert's response is filed, or from the end of the period allowed for it (Article 114, paragraph 3).
If the request is granted, another expert is appointed and may use the previous expert's information (Procedural Rules, Article 117).
When do you lose the right?
This is where a request can be rejected before its ground is ever examined. The Law sets two limits:
"A recusal request shall not be accepted from a party at whose choice the expert was appointed, unless the ground for recusal arose after the appointment. In all cases, a recusal request shall not be accepted after pleadings are closed."
Law of Evidence, Article 114, paragraph 2 (translation; the Arabic text is the original)
The Procedural Rules explain when an expert counts as chosen by you:
"The expert is deemed chosen by the litigant if the experts were presented to him and he chose one of them, or the expert was one of his nominees, or he raised no objection to the choice. This rule applies where the litigant's knowledge of the ground for recusal at the time of the expert's appointment is established."
Procedural Rules of the Law of Evidence, Article 116, paragraph 2 (translation; the Arabic text is the original)
Read the two texts together:
- An expert may count as chosen by you even if you did not name him, if he was presented to you and you did not object.
- The Law exempts from the "chosen expert" limit a ground that arose after the appointment.
- The Procedural Rules tie the limit to established knowledge of the ground at the time of appointment.
- The close of pleadings is a final cut-off in all cases.
Before you write the request
- Review the expert's disclosure and record the date you received it.
- Establish your position at the nomination stage: were the experts presented to you? Did you choose one, or stay silent?
- Establish when the ground arose, when you learned of it, and what proves that.
- Tie each ground to its text: an example from Article 114 of the Law, a situation from Article 20 of the rules, or a failure to disclose under Article 113.
- Attach the evidence for the ground, and file the request with the competent department without delay.
Reference: Law of Evidence, issued by Royal Decree No. (M/43) dated 1443/05/26 AH; Procedural Rules of the Law of Evidence and Rules Regulating Expert Affairs Before the Courts, both issued by Minister of Justice Decision No. 921 dated 1444/03/16 AH.
This article is a general explanation, not legal advice.