Civil Law and UAE Burden of Proof Basics

1. Introduction

The burden of proof is one of the most important principles of UAE civil procedure and evidence law. It determines which party must establish a particular fact before the court.

The basic idea is:

The party asserting a legal right generally bears the burden of proving the facts necessary to establish that right.

The principal legislation is Federal Decree-Law No. 35 of 2022 on Evidence in Civil and Commercial Transactions. The law regulates documentary evidence, testimony, expert evidence, electronic evidence, presumptions, oaths and other methods of proof.

Because UAE civil litigation is evidence-driven, a claimant cannot normally succeed merely by making an allegation. The claimant must establish the factual foundation of the claim.

2. Meaning of Burden of Proof

There are two related concepts:

A. Legal burden

The legal burden is the ultimate responsibility to prove a claim or defence.

For example:

A claims that B owes AED 1 million under a loan agreement.

A normally carries the legal burden of establishing:

1. existence of the loan;
2. amount advanced;
3. contractual obligation to repay;
4. maturity/default; and
5. amount outstanding.

B. Evidential burden

The evidential burden concerns the obligation to produce sufficient evidence to require the other party to answer an allegation.

The burden can therefore operate dynamically during litigation.

A useful formula is:

Legal burden = Who ultimately must prove the case

Evidential burden = Who must produce evidence at a particular stage

The distinction is particularly visible in DIFC jurisprudence.

3. General UAE Principle

Under the UAE Evidence Law, proof of obligations generally does not require a particular form unless legislation or the parties' written agreement requires one. The parties may also agree on specific evidentiary rules, subject to public-order limitations.

In practical terms:

A person claiming a right must establish the facts from which that right arises.

The opposing party may then have to prove:

• payment;
• discharge;
• set-off;
• limitation;
• invalidity;
• performance;
• counterclaim; or
• another defence,

depending on the nature of the dispute.

4. Burden of Proof and Civil Claims

Consider:

A: “B borrowed AED 500,000 and has not repaid it.”

A must generally establish:

• the loan;
• advancement of funds;
• obligation to repay; and
• outstanding amount.

If B responds:

“I already repaid the loan.”

B has introduced a new factual proposition—repayment—and must generally produce evidence supporting that defence.

Therefore:

Claim → claimant proves

Affirmative defence → defendant proves the relevant defence

5. Standard of Proof in Civil Cases

The civil standard is generally the balance of probabilities.

In simple language:

The court asks whether the asserted fact is more likely than not to have occurred.

This is different from the criminal standard of proof.

DIFC jurisprudence expressly describes the civil standard as the balance of probabilities. For example, in Anastasiia Denisova v Aleksei Galtcev & Realiste Holding Ltd [2024] DIFC CFI 041, the court confirmed that the claimant had to establish the preliminary issue on a balance of probabilities.

6. Case Law

Case 1: Dubai Court of Cassation — Case No. 216/2009

This is an important UAE authority concerning the burden of proof in unjust-enrichment claims.

The Dubai Court of Cassation held that the person alleging that his property was transferred to another without lawful cause bears the burden of proving:

1. that the property was transferred; and
2. that the transfer occurred without lawful cause.

The Court treated whether those conditions existed as a factual question for the trial court.

Principle

The person asserting an unjustified transfer must prove both the transfer and absence of lawful cause.

Importance

This demonstrates the basic UAE approach:

Allegation → supporting evidence → judicial determination.

7. Case 2: Dubai Court of Cassation — Case No. 234/2009

In this case, the Dubai Court of Cassation again considered unjust enrichment.

The Court explained that where a contractual relationship governs the parties, the contract normally determines their rights and obligations. The party alleging that the other side used unlawful means bears the burden of establishing that allegation.

Principle

A party cannot simply say:

“The other party benefited unfairly.”

It must establish the factual and legal basis for that allegation.

Importance

This demonstrates that the burden of proof depends partly upon the legal basis of the claim.

8. Case 3: Dubai Court of Cassation — Judgment No. 402 of 2020

This case concerned the assessment of evidence and expert material in a civil dispute.

The Dubai Court of Cassation recognised the trial court's authority to:

• assess evidence;
• examine expert reports;
• determine factual matters;
• evaluate fault;
• determine damage; and
• assess causation.

However, the court's conclusion must have a proper evidentiary and reasoning foundation.

Principle

The burden of proof is discharged through legally acceptable evidence, not merely through allegations.

The case is particularly important in disputes where expert evidence is necessary.

9. Case 4: NS Investments Ltd v Ajay Sethi [2020] DIFC CFI 055

This DIFC case provides a clear explanation of legal and evidential burdens.

The court stated that the applicant seeking immediate judgment carries the legal burden of proof. Once the claimant establishes an entitlement to judgment through evidence, the defendant may bear an evidential burden of showing a real prospect of successfully defending the claim.

Example

Suppose:

A produces a signed loan agreement + evidence of payment of the loan + evidence of non-repayment.

The claimant may have discharged its initial burden.

The defendant then needs evidence supporting its assertion that:

“The loan was converted into an investment.”

Importance

This case clearly demonstrates:

The evidential burden can shift even though the ultimate legal burden remains with the claimant.

10. Case 5: Zuzana Kapova v Miloslav Makovini & Pharm Trade Holding Ltd [2023] DIFC CA 004

The DIFC Court of Appeal considered the burden of proof in an application for security for costs.

The Court explained that the legal burden remained on the respondents, but that burden could be satisfied through an inference from the totality of the evidence.

The Court also recognised that deliberate failure to provide information within a party's exclusive knowledge could contribute to an adverse inference.

Principle

A party cannot necessarily avoid an evidentiary consequence simply by remaining silent when:

• the issue has been properly raised;
• the party has the relevant information; and
• the party has had a fair opportunity to respond.

Importance

This illustrates the relationship between:

burden of proof + evidence + adverse inference.

11. Case 6: Emirates NBD Bank PJSC & Others v Advanced Facilities Management LLC & Others [2022] DIFC CA 012

The DIFC Court of Appeal considered the burden of proof in an application for immediate judgment.

The Court confirmed that the legal burden rests on the claimant in the relevant application and discussed the requirement that a claim have a realistic rather than merely fanciful prospect of success.

Principle

The court does not normally conduct a complete trial at the summary stage.

Instead, it asks whether the evidence demonstrates a sufficient basis for the relevant procedural relief.

Importance

This shows that:

The burden and standard of proof can operate differently depending on the procedural stage of litigation.

12. Case 7: Mohammed Zahid Aalam v SDI Capital Ltd & Others [2018] DIFC CFI 084

This case involved employment claims.

The DIFC Court applied the civil standard of preponderance of the evidence. However, the employment legislation placed particular record-keeping obligations on employers.

Once the employee established that he had worked for the employer, the employer had to produce relevant employment and payroll records concerning entitlement and payment.

Principle

The allocation of proof can be affected by statutory obligations concerning information and records.

Importance

This is especially relevant where one party possesses evidence that the other party cannot reasonably access.

13. Case 8: Nafrin v Nahlah [2024] DIFC SCT 356

The dispute concerned whether a particular introduction had occurred under a recruitment-related agreement.

The Court held that the claimant carried the burden of proving that the defendant proceeded with the candidate's application because of the claimant's introduction rather than because of another source.

Principle

A claimant must prove the causal factual connection necessary for the claimed contractual entitlement.

Importance

This illustrates that proving a contract exists is not necessarily enough.

A claimant may also have to prove:

• performance;
• causation;
• breach; and
• loss.

14. Case 9: Idan v Ilaria [2018] DIFC SCT 223

The DIFC Small Claims Tribunal held that the claimant carried the burden of establishing that the DIFC Courts had jurisdiction.

The claimant had to demonstrate the relevant jurisdictional gateway under the Judicial Authority Law.

Principle

The burden of proof can apply not only to the merits but also to jurisdictional facts.

For example, a party may have to establish:

• contractual jurisdiction clause;
• DIFC connection;
• relevant defendant status;
• transaction connection; or
• another statutory jurisdictional gateway.

15. What Must a Claimant Generally Prove?

Depending on the cause of action, the claimant may need to establish:

Contract claim

1. valid contract;
2. contractual obligation;
3. performance or readiness to perform;
4. breach;
5. causation; and
6. damage.

Tort claim

1. wrongful act;
2. fault where required;
3. damage;
4. causation.

Debt claim

1. existence of debt;
2. amount;
3. maturity;
4. non-payment.

Unjust enrichment

1. benefit/enrichment;
2. corresponding deprivation;
3. absence of lawful cause; and
4. other applicable requirements.

16. What Does the Defendant Have to Prove?

A defendant does not necessarily have to prove everything.

The defendant generally needs to prove the factual basis of an affirmative defence.

Examples include:

Payment

“I already paid.”

Evidence may include:

• bank transfer;
• receipt;
• settlement agreement;
• payment confirmation.

Set-off

“The claimant also owes me money.”

The defendant must establish the relevant counter-obligation.

Discharge

“The debt was legally released.”

Evidence must establish the release.

Limitation

“The claim was brought outside the legally permitted period.”

The defendant must establish the factual basis necessary for that defence.

17. Burden of Proof vs Standard of Proof

These concepts must not be confused.

Example

A claims AED 1 million.

Burden: A must establish the debt.

Standard: A must establish it on the civil standard.

Evidence: contract, bank records, invoices, correspondence.

18. Documentary Evidence

Documents are extremely important in UAE civil litigation.

Examples include:

• contracts;
• invoices;
• bank statements;
• correspondence;
• receipts;
• corporate records;
• electronic communications;
• accounting records.

The UAE Evidence Law provides that obligations generally do not require a specific form unless legislation or an agreement requires it.

The practical lesson is:

A well-documented transaction is much easier to prove than an oral allegation.

19. Electronic Evidence

Modern UAE litigation increasingly involves:

• email;
• WhatsApp;
• electronic contracts;
• digital signatures;
• blockchain records;
• electronic payment records;
• system logs.

The Evidence Law contains specific provisions concerning electronic evidence, including rules concerning validity, production and probative value.

Therefore, a claimant relying on electronic evidence should consider:

Authenticity + integrity + attribution + completeness + relevance.

20. Expert Evidence

Some disputes cannot realistically be established through ordinary documents alone.

Examples:

• construction defects;
• accounting disputes;
• medical issues;
• valuation;
• engineering;
• software;
• blockchain;
• financial calculations.

The expert assists the court with technical questions.

But:

Expert evidence does not transfer the judicial function to the expert.

The court ultimately determines the legal consequences.

21. Adverse Inference

An adverse inference means that the court may draw a negative inference from a party's failure to produce evidence in circumstances where:

• the evidence is relevant;
• the party had access to it;
• the party was given an opportunity to produce it; and
• the failure to produce it requires explanation.

The DIFC Court of Appeal's decision in Zuzana Kapova illustrates this principle: deliberate failure to respond to an evidential issue could contribute to an inference assisting the opposing party in satisfying its burden.

This does not mean:

“Silence automatically proves the opponent's case.”

Rather:

Silence can form part of the totality of evidence.

22. Burden of Proof and Access to Evidence

Modern litigation creates an important practical problem.

Sometimes:

Party A has the legal burden, but Party B possesses most of the evidence.

Examples:

• employee vs employer payroll records;
• customer vs bank records;
• shareholder vs company records;
• patient vs medical institution;
• consumer vs platform;
• investor vs financial intermediary.

This is why procedural disclosure, expert evidence, document production and statutory record-keeping obligations can become important.

The Mohammed Zahid Aalam case is a useful illustration in the employment context.

23. Burden of Proof in Digital Disputes

Digital transactions create special difficulties.

Suppose:

A says that B transferred cryptocurrency from A's wallet.

A may need to establish:

1. ownership or entitlement;
2. wallet identity;
3. transaction record;
4. attribution to B;
5. absence of authorisation;
6. contractual relationship; and
7. resulting loss.

A blockchain record may establish that a transaction occurred, but additional evidence may be needed to establish who controlled the wallet and whether the transaction was legally authorised.

Therefore:

Digital proof of an event does not automatically prove the legal responsibility for that event.

24. Burden of Proof in Commercial Litigation

Commercial disputes frequently involve competing documentary records.

For example:

Company A: “The goods were delivered.”

Company B: “The goods were defective.”

A may need to prove:

• delivery;
• quantity;
• date;
• contractual compliance.

B may need to establish:

• defect;
• non-conformity;
• inspection evidence;
• notice;
• resulting loss.

Thus, different factual propositions can carry different burdens of proof within the same case.

25. Burden of Proof and Court Discretion

UAE courts generally have substantial authority to assess evidence.

But judicial discretion does not eliminate the burden of proof.

The court cannot simply say:

“I believe A.”

It must assess the evidence within the applicable legal framework.

This is why the relationship is:

Burden of proof → Evidence → Judicial evaluation → Reasoned judgment.

26. Burden of Proof and Presumptions

A legal presumption can alter the evidentiary position.

A presumption may mean that once one fact is established, another fact is presumed unless rebutted.

The practical structure becomes:

Fact A proved → Presumption B → Opposing party may need to rebut B.

Presumptions therefore sometimes shift the evidential burden, even though the underlying legal framework remains governed by legislation.

27. Burden of Proof and Contractual Agreements

The UAE Evidence Law allows litigants, subject to public-order restrictions, to agree in writing upon particular evidentiary rules.

This is commercially significant.

A contract may contain provisions concerning:

• certificates;
• inspection reports;
• delivery records;
• payment confirmations;
• agreed accounting procedures;
• electronic communications;
• expert determination.

However, contractual evidentiary arrangements cannot simply override mandatory legal rules or public policy.

28. Burden of Proof in Arbitration

The same basic concept applies in arbitration:

The party asserting a fact normally needs to prove it.

The exact procedural allocation depends upon:

• arbitration agreement;
• institutional rules;
• procedural orders;
• applicable substantive law; and
• tribunal directions.

Arbitral tribunals may also draw reasonable inferences where evidence is withheld, subject to due process.

29. Burden of Proof and Cross-Border Litigation

In international commercial disputes, parties may face different legal systems.

For example:

UAE company + English governing law + DIFC arbitration + foreign evidence.

The tribunal or court must determine:

• applicable substantive law;
• evidentiary rules;
• procedural law;
• burden of proof; and
• standard of proof.

This makes careful drafting of governing-law and dispute-resolution clauses extremely important.

30. Practical Example

Suppose A sells machinery to B for AED 2 million.

A later claims:

“B failed to pay AED 500,000.”

A's burden

A should establish:

• contract;
• price;
• delivery/performance;
• outstanding balance.

B's response

B says:

“The machinery was defective and I was entitled to withhold payment.”

B now needs evidence of:

• defect;
• contractual warranty;
• inspection;
• notice;
• causal relationship; and
• contractual/legal right to withhold payment.

Court

The court evaluates:

Contract + invoices + bank records + correspondence + expert report + other evidence.

The ultimate judgment follows the party that establishes the legally relevant facts on the applicable standard.

31. Key UAE Case-Law Principles

The DIFC authorities above are persuasive/locally applicable DIFC authorities, not binding precedents for UAE onshore courts.

32. Important Exam Points

Point 1

The claimant normally bears the burden of establishing the facts necessary for the claim.

Point 2

A defendant normally bears the evidential responsibility for affirmative factual defences.

Point 3

The civil standard is generally the balance of probabilities.

Point 4

Legal burden and evidential burden are different.

Point 5

The evidential burden can shift during proceedings.

Point 6

The court evaluates the totality of evidence.

Point 7

Failure to produce evidence may sometimes support an adverse inference.

Point 8

Expert evidence is important where technical facts cannot reasonably be established without specialised knowledge.

Point 9

Electronic evidence is increasingly important in UAE commercial disputes.

Point 10

The burden of proof does not disappear merely because the dispute is technologically complex.

33. Conclusion

The UAE law of burden of proof is fundamentally based on the principle that a party seeking to establish a legal right must establish the factual foundation of that right through legally admissible and sufficiently persuasive evidence.

The distinction between legal burden and evidential burden is particularly important. The legal burden generally remains with the party who must ultimately establish the claim, while the evidential burden may move as evidence is produced.

The UAE Evidence Law of 2022 provides the principal statutory framework, while UAE Court of Cassation jurisprudence and DIFC decisions demonstrate how courts apply these principles to contracts, unjust enrichment, commercial disputes, expert evidence, electronic records, jurisdiction and summary proceedings.

Short Exam Formula

Burden of Proof = Party asserting the relevant fact + admissible evidence + balance of probabilities + judicial evaluation.

And:

Legal Burden ≠ Evidential Burden.
Legal burden is ultimate responsibility; evidential burden concerns the production of sufficient evidence at a particular stage.