A right without evidence does not exist before a court. The real battle in a case is not the advocacy but what you gathered before filing — and by which means the law permits you to prove it.
The foundational rule: the burden lies on the claimant, and the oath on the denier. Whoever understands where the burden falls in their case has won half the road.
Contents
1) The Burden of Proof
The Evidence Law governs the means of proof and their weight. As a rule the claimant proves what it asserts, and the defendant proves what it pleads in answer.
- Whoever asserts the contrary of the norm bears the burden.
- A legal presumption shifts the burden to the opponent.
- Negative facts are hard to prove, so proof of their converse suffices.
Practical effect: identifying where the burden lies may decide the case by itself — a party who fails to discharge it loses even if right on the facts.
2) Writing and When It Is Required
Official documents
Issued by a competent public official. Their weight is strong, and they may be challenged only by alleging forgery.
Private documents
Made by individuals. They stand unless the person to whom the writing or signature is attributed denies it.
- Transactions exceeding a defined value must be proved in writing.
- Exceptions arise where there is a beginning of proof in writing or an impediment to obtaining written evidence.
- And where the instrument has been lost through an external cause.
An important practical concept: a beginning of proof in writing — a document emanating from the opponent making the fact probable — opens the door to witness evidence even where writing would otherwise be required.
3) Freedom of Proof in Commercial Matters
The legislator relaxed the restrictions on proof in commercial dealings in view of their speed:
- Proof by any means is permitted whatever the value, as a rule.
- Regularly kept commercial books carry special weight between traders.
- Invoices, correspondence and purchase orders are recognised evidence.
A double-edged sword: regularly kept commercial books are evidence both for and against their owner. A party relying on its books accepts them with whatever entries tell against it.
4) Witness Testimony
- Admissible where writing is not required, and generally in commercial matters.
- Testimony is subject to the court's assessment, which may accept part and reject part.
- It must concern facts the witness perceived personally, not hearsay.
- Kinship or interest weakens testimony without necessarily invalidating it.
A practical tactic: one precise and specific witness to facts personally observed is stronger than ten witnesses speaking in generalities and hearsay.
5) Presumptions
- Legal presumptions: laid down by statute and dispensing with proof; they may or may not admit rebuttal.
- Judicial presumptions: drawn by the judge from the facts, admissible only where witness evidence is admissible.
- Res judicata is a conclusive presumption as to what the judgment decided.
Building presumptions: one presumption may not suffice, but several converging presumptions supporting one another build the court's conviction — an art in structuring a defence.
6) Admissions and Oaths
Admission
The master of evidence. Conclusive against the maker, indivisible as a rule, and revocable only for a mistake of fact.
Oath
- Decisive oath: tendered by a party to settle the dispute.
- Supplementary oath: administered by the court to complete its conviction.
Warning: tendering the decisive oath is a grave and irrevocable decision — whoever tenders it is bound by the result even if the opponent swears falsely. Tender it only after every other avenue is exhausted.
7) Expertise and Inspection
- Expertise is ordered in technical matters beyond the judge's knowledge.
- The expert's report is an element of proof subject to the court's assessment, not binding authority.
- Parties may examine the expert and seek a re-reference or a panel of three.
- Inspection is a direct means of establishing the position on site.
A frequently wasted step: attending the expert's work and submitting a memorandum and documents at the time. Objecting to a report after it is filed is far weaker than steering the expertise while it is being carried out.
8) Electronic Evidence
Modern legislation recognises the weight of electronic records and signatures on conditions ensuring their integrity.
- Email and messages are recognised evidence once attribution is established.
- An electronic signature meeting its conditions carries the weight of a signed document.
- Integrity of storage and freedom from tampering are conditions of admissibility.
- A technical expert may be needed to establish the authenticity of the source.
Highly practical: a screenshot alone is weak. Far stronger is an official record of the state of affairs documenting the digital content at its source before it is deleted or altered.
Need to build a strong evidential file before filing, or to meet your opponent's evidence? Contact Attorney Meshari Obaid Al-Enezi — Yumnaak Law Firm.
