The DIFC Court of First Instance has formalized the procedural substitution of an expert witness in a complex commercial dispute, ensuring that the integrity of expert testimony is maintained through mandatory re-verification and declaration requirements.
Why did Sam Precious Metals FZ-LLC seek to substitute Mr. Hisham Farouk with Mr. Aakash Bassi in CFI 030/2023?
The litigation, involving Sam Precious Metals FZ-LLC, Sami Riyad Mahmoud Abu-ahmad, and Rosyson FZE against Snyder Prime Limited, Phoebe Leah Tooker, and Shakthi Chauhan, reached a procedural juncture regarding the presentation of expert evidence. The Claimants initiated an application via email correspondence on 4 June 2024 to replace their previously appointed expert, Mr. Hisham Farouk, with Mr. Aakash Bassi.
While the underlying merits of the dispute remain ongoing, the necessity for this substitution highlights the importance of expert continuity and the court's role in managing witness transitions. The application was treated as a matter of procedural efficiency, allowing the Claimants to align their expert testimony with their current evidentiary strategy. The court’s order ensures that the transition does not prejudice the Defendants, as the substitution was granted on the basis that the new expert must fully adopt and verify the evidence previously prepared.
Mr. Bassi shall file a fresh copy of the expert report making all of the required declarations
for himself and verifying the report with his own statement of truth.
Which judge presided over the consent order for the substitution of expert witnesses in CFI 030/2023?
Assistant Registrar Delvin Sumo presided over the matter in the DIFC Court of First Instance. The order was issued on 19 June 2024, following a review of the correspondence exchanged between the parties in early June 2024.
What was the position of Snyder Prime Limited regarding the Claimants' request to replace their expert witness?
The Defendants, Snyder Prime Limited, Phoebe Leah Tooker, and Shakthi Chauhan, adopted a non-adversarial stance regarding the Claimants' application. Following the Claimants' initial request on 4 June 2024, the Defendants provided their response via email on 12 June 2024. By confirming that they had no objection to the substitution of Mr. Hisham Farouk with Mr. Aakash Bassi, the Defendants facilitated a streamlined resolution to the procedural request. This lack of objection allowed the court to issue a consent order, thereby avoiding the need for a formal hearing or contested motion.
What was the precise procedural question the DIFC Court of First Instance had to resolve regarding the expert evidence in CFI 030/2023?
The court was tasked with determining whether a party may unilaterally substitute an expert witness and, if so, what procedural safeguards must be imposed to ensure the validity of the expert evidence. The doctrinal issue centered on the court’s power to manage the expert witness process under the Rules of the DIFC Courts (RDC) while ensuring that the expert’s duty to the court—which is paramount—is not compromised by the change in personnel. The court had to decide if the new expert could simply adopt the existing report or if a formal re-filing and re-verification process was required to maintain the integrity of the evidentiary record.
How did Assistant Registrar Delvin Sumo apply the principle of expert verification to the substitution of Mr. Aakash Bassi?
The court’s reasoning focused on the necessity of maintaining the expert's personal accountability for the evidence presented. By allowing the substitution, the court acknowledged that while the substance of the expert report might remain consistent with the original evidence of Mr. Farouk, the legal responsibility for that evidence must shift entirely to Mr. Bassi. The court mandated that the new expert must personally attest to the findings, thereby ensuring that the expert’s duty to the court is fully discharged by the individual providing the testimony.
Mr. Bassi shall file a fresh copy of the expert report making all of the required declarations
for himself and verifying the report with his own statement of truth.
This approach ensures that the court is not presented with "anonymous" or "adopted" evidence that lacks the requisite personal verification required by the RDC. By requiring a fresh copy of the report with new declarations, the court protects the procedural fairness of the trial, ensuring that the Defendants have a clear, verified document to cross-examine.
Which specific Rules of the DIFC Courts (RDC) govern the appointment and substitution of experts in the Court of First Instance?
While the order itself is a consent-based procedural directive, it operates within the framework of Part 31 of the Rules of the DIFC Courts (RDC), which governs the use of expert evidence. Specifically, RDC 31.1 establishes the court’s power to restrict expert evidence, while RDC 31.12 and 31.13 outline the expert’s duty to the court and the requirements for the expert’s report. The requirement for a "statement of truth" is mandated by RDC 31.13(2), which requires the expert to verify that they understand their duty to the court and have complied with it.
How does the DIFC Court’s approach to expert substitution compare to the standard established in previous DIFC procedural rulings?
The DIFC Courts have consistently emphasized that expert evidence is a tool for the court’s assistance rather than a partisan instrument. In line with the principles seen in earlier DIFC jurisprudence regarding expert conduct, the court here prioritized the "fresh declaration" requirement. By requiring Mr. Bassi to provide his own statement of truth, the court followed the established practice of ensuring that no expert can rely on the work of another without assuming full personal liability for the conclusions drawn. This prevents the "outsourcing" of expert opinion and maintains the standard of individual accountability required by the RDC.
What was the final disposition of the application filed in CFI 030/2023?
The court granted the Claimants' application in its entirety. The order provided the Claimants with the liberty to re-file the expert evidence previously attributed to Mr. Hisham Farouk under the name of Mr. Aakash Bassi. The order was conditional upon Mr. Bassi filing a fresh copy of the report, complete with his own declarations and a statement of truth. No costs were awarded in this specific order, as it was a consent-based procedural adjustment.
What are the practical implications for practitioners seeking to substitute experts in ongoing DIFC litigation?
Practitioners should note that while the DIFC Court is generally amenable to the substitution of experts, particularly when there is no objection from the opposing party, the court will strictly enforce the procedural requirements for expert verification. The primary takeaway is that a change in expert does not allow for a shortcut in the evidentiary process. Any new expert must personally adopt the findings and satisfy the court’s requirements for declarations and statements of truth. Failure to ensure that the new expert has personally verified the report could lead to the evidence being ruled inadmissible or subject to significant challenge during trial.
Where can I read the full judgment in M/s. Sam Precious Metals FZ-LLC v M/s. Snyder Prime Limited [2024] DIFC CFI 030?
The full text of the consent order can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0302023-1-ms-sam-precious-metals-fz-llc-2-sami-riyad-mahmoud-abu-ahmad-3-rosyson-fze-v-1-ms-snyder-prime-limited-2-phoebe-le-3
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| N/A | N/A | No specific case law cited in this consent order. |
Legislation referenced:
- Rules of the DIFC Courts (RDC), Part 31 (Expert Evidence)