Is there a Duty to Disclose Documents in the Course of Litigation Under the UAE Law?

Unlike the English provisions on disclosure contained in the CPR 31 (standard disclosure), there are no provisions in the UAE law specifically for a standard disclosure of documents in the course of litigation.

As a general principal under the UAE Law of Evidence No. 35/2022, Article 2 provides that the onus of proof shall rest on the plaintiff, and the oath shall rest on the defendant. The litigation parties will only be required to produce the documents they rely on in support of their case and there is no obligation to produce adverse documents undermining their own case or documents which support the opponent’s case. 

In the event one of the litigation parties refuses to disclose a document in his possession/control on request of the other party, the party requesting the disclosure of the documents may ask the Court to direct the refusing party to disclose the documents. Article 33 of Law of Evidence No. 35/2022 provides the following:

1.     The litigant may request the supervising judge or the court, as the case may require, to order his opponent to submit any electronic or paper document he has in his possession that is material to the case in the following cases: 

• If the law permits requiring him to submit or deliver it. 
• If the document is joint between him and his opponent. A document shall be considered as joint in particular if it is for the benefit of both litigants, or if it establishes their mutual obligations and rights or affects their legal status. 
• If his opponent bases his claim thereupon in any stage of the proceedings. 

2.     The request referred to in Clause (1) of this Article shall not be accepted unless it satisfies the following elements: 

• The descriptions of the document, and its content with as much detail as possible.   
• The evidence and circumstances corroborating the litigant's possession thereof. 
• The fact evidenced by the document, and the reason for requiring the litigant to submit it.

Further Article 34 provides that: 

1.     If the litigant admits that the document is in his possession or remains silent, or if the person making the request proves the validity of his request, the Court shall order that the document be submitted forthwith or on the date it specifies. 

2.     If the litigant refuses to submit the requested document after being granted a one-time grace period, the copy of the document submitted by the person making the request shall be considered an authentic true copy of the original. If he has not submitted a copy of the document, the Court may accept the statement of the person making the request regarding the form and the content of the document. 

3.     If the litigant denies the existence of the document and the person making the request fails to provide the Court with adequate proof of the validity of his request, he may request the Court to tender the oath to his opponent that the document does not exist, that he has no knowledge of its existence or its location and that he has not hidden it or neglected to search for it to prevent the person making the request from using it as evidence. If the litigant refuses to take the oath and does not tender it back to the person making the request or if he tenders back the oath to the one making the request and he takes the oath, the copy of the document submitted by the person making the request shall be considered an authentic true copy of the original. If he has not submitted a copy of the document, the Court may accept the statement of the person making the request regarding the form and content of the document.

The above applies to the onshore litigation for example in Dubai or Abu Dhabi Courts. The litigant wishing to obtain a document from a reluctant party must follow the procedure by submitting a request as described in Articles 33 and 34 to direct the other party to disclose the relevant documents. If the opponent argues that the documents are not in his control to be able to disclose them, and the other party is unable to produce a copy of the same, the Court may accept his statement from the person making the request regarding the form and the content of the document (See Article 34.3).

Further, Article 35 provides:

1.     The litigant in commercial lawsuits may request his opponent to submit a document relevant to the case or may request to review such document, and the Court shall order same pursuant to the following controls: 

• The document shall be specified per se or by its type. 
• The document shall be related to the commercial transaction subject of the case, or it shall be conducive to revealing the truth in it. 
• Its review shall not violate any right to trade secret or any rights related thereto, unless the Court deems otherwise by a grounded decision.

2.     If the litigant refuses to submit the documents that the Court ordered him to submit to his opponent in accordance with the provisions of Clause (1) of this Article, the Court may consider his refusal to be a presumption of the validity of the claim of his opponent.

Additionally, if the documents in question are in possession or control of a third party, Article 36 provides the following:

The Court or the supervising judge, as the case may require, may sua sponte or at the request of one of the litigants, and during the proceedings albeit before the Court of appeal, decide the following: 

1.     To bring in a third party to require them to submit a document in their possession. 

2.     To request a document from a public authority or a copy thereof certified to be a true copy of the original if that is not possible for the litigant. The Court or the supervising judge, as the case may require, may request the public authority to submit in writing or orally the information relevant to the case which it has in its possession, without prejudice to the provisions of the relevant legislation.

In all of the above, the documents subject of the request to the judge or the request to bring a third party to the litigation or for the third party to submit a document in their possession must be determinative of the case and important to establish the truth. The Court is competent to assess the request and decide whether the above requirements are met by the party making the request. The Court has the discretion to grant or reject the request.

This article does not constitute a legal advice, but to raise awareness on the applicable laws. For further information and legal advice, please contact us or get in touch via our website.