Civil Law and UAE: Burden-Shifting Doctrines in Fraud and Negligence

1. Introduction

In UAE civil litigation, the burden of proof normally rests on the party asserting the right or factual proposition. However, in fraud and negligence disputes, the evidential position can become more complicated because important facts may be:

exclusively known to the defendant;

contained in the defendant's records;

technically difficult to prove;

established through circumstantial evidence;

dependent on expert evidence; or

capable of giving rise to reasonable inferences.

Therefore, burden shifting does not mean that the claimant automatically wins once fraud or negligence is alleged. Rather, it means that after the initial evidentiary burden is satisfied, the opposing party may have to produce evidence explaining or rebutting the case.

The UAE Evidence Law, Federal Decree-Law No. 35 of 2022, remains the central federal statute governing proof in civil and commercial transactions. (UAE Legislation)

2. Basic Rule: The Party Making the Assertion Bears the Burden

The starting point is:

He who claims a right must establish the factual basis of that right.

For example:

A says: “B fraudulently induced me to enter the contract.”

A normally needs to establish the relevant facts constituting fraud.

Similarly:

A says: “B negligently caused my property damage.”

A normally needs to establish:

duty or legally relevant obligation;

breach/negligent conduct;

damage; and

causal connection.

The precise requirements depend on the applicable UAE law and the particular cause of action.

3. What Does “Burden Shifting” Mean?

Burden shifting should be understood carefully.

It can mean:

Stage 1 — Initial burden

The claimant produces sufficient evidence to establish a prima facie factual case.

Stage 2 — Evidential response

The defendant is then expected to provide evidence explaining, rebutting or disproving the claimant's evidence.

Stage 3 — Final determination

The court evaluates the whole evidentiary record and decides whether the claimant has ultimately established the claim.

Thus:

Evidential burden may shift; the ultimate legal burden does not necessarily shift.

This distinction is particularly important in fraud cases.

4. Fraud Requires Strong Evidentiary Treatment

Fraud is a serious allegation because it generally involves intentional deception or dishonesty.

The civil standard nevertheless remains the balance of probabilities. There is not automatically a separate criminal-level standard merely because fraud is alleged.

However, the seriousness and inherent improbability of fraud can affect how the court evaluates the evidence.

In Graciela Ltd v Giacobbe [2014] DIFC CFI 027, the DIFC Court expressly stated that the burden remained on the claimant and that the civil standard was the balance of probabilities. It also explained that the seriousness of an allegation can affect the assessment of probabilities and the strength of evidence required to satisfy the ordinary civil standard. (DIFC Courts)

5. Fraud Case 1: VTJ Ltd v Mohammed Ammar Al Hassan [2018] DIFC CA 009

This is a particularly useful authority.

The dispute involved allegations concerning a memorandum of understanding and whether it had been fabricated.

The DIFC Court of Appeal emphasised that fraud must be distinctly alleged and distinctly proved. The Court found that the evidence did not justify the finding that the document was fraudulent or fabricated. (DIFC Courts)

Principle

A court should not infer fraud merely because:

documents are incomplete;

a party's story appears weak;

there are inconsistencies; or

another explanation seems more plausible.

The allegation must be established by the evidence.

Burden-shifting significance

The defendant does not necessarily have to prove:

“I am innocent.”

Instead, the claimant must first establish the alleged fraud.

6. Fraud Case 2: ICICI Bank Ltd v Bavaguthu Raghuram Shetty [2022] DIFC CFI 034

This case provides an important illustration of misallocated burden of proof.

The bank argued that Mr Shetty should bear the burden of proving forgery or fraud.

The Court rejected that proposition and held that the Bank carried the burden of proving the facts on which it relied, including execution of the guarantees by Mr Shetty. The court considered documentary and expert evidence, including evidence concerning electronic and wet-ink signatures. (DIFC Courts)

Principle

A party cannot shift its own initial burden to the opponent simply by characterising the opponent's denial as an allegation of fraud.

Practical rule

If:

Bank says A signed the guarantee

the bank generally needs evidence establishing execution.

It is not automatically A's responsibility to prove:

“I did not commit fraud.”

7. Fraud Case 3: SBM Bank (Mauritius) Ltd v Renish Petrochem FZE [2018] DIFC CFI 054

The DIFC Court considered allegations of fraud in the context of summary judgment.

The Court confirmed that the civil standard remains the balance of probabilities, while recognising that the seriousness of fraud allegations can require careful consideration of the evidence. It also stressed caution when deciding fraud cases without a full trial. (DIFC Courts)

Principle

Fraud does not create a higher formal standard of proof.

Instead:

More serious allegation + ordinary civil standard + appropriate evaluation of probability and evidence.

Burden-shifting significance

Where the claimant produces compelling evidence of fraud, the defendant may need to provide a credible evidentiary explanation.

But the ultimate question remains whether the claimant has proved the case.

8. Fraud Case 4: Graciela Ltd v Giacobbe [2014] DIFC CFI 027

In Graciela, the Court expressly stated that the claimant bore the burden and that the applicable standard was the balance of probabilities. (DIFC Courts)

The Court considered the seriousness of the allegations when assessing the evidence.

Principle

The court does not use:

“Fraud = criminal standard.”

Instead:

Fraud = civil burden + balance of probabilities + careful evaluation of the inherent probabilities and evidence.

This distinction is essential in UAE/DIFC civil litigation.

9. Fraud Case 5: DAMAC Park Towers Co Ltd v Youssef Issa Ward [2015] DIFC CA 006

This case is particularly useful for distinguishing fraud and negligence.

The DIFC Court observed that accepting evidence sufficient to clear a person of fraud does not necessarily dispose of a separate negligence issue. (DIFC Courts)

Importance

A factual situation may potentially involve:

fraud;

negligence;

breach of contract; and

breach of duty.

The failure to prove intentional dishonesty does not automatically prove that reasonable care was exercised.

Thus:

Failure of fraud claim ≠ automatic failure of negligence claim.

This is an important burden-shifting distinction.

10. Fraud Case 6: Khaled Salem Musabeh Humad Al Mheiri v John Cameron [2025] DIFC CA 008

This recent DIFC Court of Appeal decision strongly emphasised the need for cogent evidence and adequate reasoning when making a finding of fraud.

The Court stated that identifying:

the evidence;

the factual findings based on that evidence; and

the reasoning connecting the evidence to the conclusion

helps reduce the risk of an erroneous finding of fraud. (DIFC Courts)

Principle

A fraud finding should not be based upon:

suspicion + inference + assumption.

It should be based upon:

evidence + findings of fact + logical reasoning.

Burden-shifting significance

Once the claimant establishes a sufficiently strong evidential case, the defendant may face a practical need to explain suspicious circumstances.

But the court must still determine whether the claimant's ultimate burden has been discharged.

11. Negligence: Different Evidentiary Structure

Negligence generally requires a different analysis from fraud.

A claimant ordinarily needs to establish:

1. Duty

The defendant owed a legally recognised duty or obligation.

2. Breach

The defendant failed to act according to the applicable standard of care.

3. Damage

The claimant suffered legally recognisable harm.

4. Causation

The breach caused the damage.

Therefore:

Negligence = Duty + Breach + Causation + Damage

The precise formulation depends on whether the claim is contractual, delictual/tortious, professional, statutory or otherwise.

12. Negligence and Expert Evidence

Negligence claims frequently involve technical questions.

Examples:

medical negligence;

construction defects;

engineering failure;

banking negligence;

professional negligence;

cybersecurity failures;

software defects.

The claimant may initially need expert evidence to establish that the defendant's conduct fell below the relevant standard.

Once a prima facie case is established, the defendant may have to produce:

its records;

internal procedures;

inspection reports;

professional evidence;

compliance records; or

evidence of reasonable precautions.

This is a practical form of evidential burden shifting.

13. Dubai Court of Cassation Judgment No. 402 of 2020

This case is important for the relationship between burden of proof and expert evidence.

The Dubai Court of Cassation recognised the trial court's authority to evaluate evidence and expert reports when determining matters such as:

fault;

damage;

causation; and

technical questions.

The trial court's conclusion must nevertheless be supported by proper reasoning and evidence.

Significance

A claimant cannot establish negligence merely by saying:

“The defendant caused the loss.”

The claimant needs evidence establishing the necessary elements.

Where technical issues exist, expert evidence can become central to that process.

14. Negligence and Exclusive Information

Burden shifting becomes particularly important where the defendant controls the relevant information.

Examples:

Hospital

Patient alleges medical negligence.

The hospital possesses:

treatment records;

internal protocols;

nursing records;

medication records.

Bank

Customer alleges negligent processing.

The bank possesses:

transaction logs;

authentication records;

internal alerts;

compliance records.

Construction company

Owner alleges defective construction.

Contractor possesses:

engineering records;

inspection reports;

material specifications;

testing records.

The claimant still has an initial burden, but the court may expect the party controlling relevant evidence to produce an explanation.

15. Adverse Inference

One of the most important mechanisms connected with burden shifting is the adverse inference.

An adverse inference can arise where a party:

possesses relevant evidence;

has the opportunity to produce it;

fails to provide a satisfactory explanation; and

the circumstances justify an inference from that failure.

The principle should not be exaggerated.

Failure to produce evidence does not automatically prove fraud or negligence.

Instead, it becomes one part of the evidentiary assessment.

In Zuzana Kapova v Miloslav Makovini & Pharm Trade Holding Ltd [2023] DIFC CA 004, the DIFC Court of Appeal recognised that the legal burden could be satisfied through an inference from the totality of the evidence and considered the consequences of failing to provide information within a party's control.

16. Burden Shifting in Fraud vs Negligence

17. No Automatic “Reverse Burden” Merely Because Fraud Is Alleged

This is a very important point.

Suppose:

A: “B committed fraud.”

B says:

“Prove it.”

A cannot respond:

“B has not proved that he is innocent.”

That reverses the ordinary burden improperly.

The initial burden remains on A.

This principle is illustrated strongly by ICICI Bank v Shetty, where the court rejected an attempt to place the burden of proving forgery/fraud upon the party against whom the bank was asserting execution of guarantees. (DIFC Courts)

18. Circumstantial Evidence

Fraud is often difficult to prove through direct evidence.

A person rarely writes:

“I intend to deceive the claimant.”

Therefore, fraud may sometimes be established through a combination of circumstances.

For example:

false representation;

defendant knew it was false;

defendant possessed information contradicting it;

claimant relied upon representation;

defendant received a benefit; and

transaction caused loss.

The court can draw reasonable inferences from the totality of evidence.

However:

Inference must be reasonable, not speculative.

This is why VTJ v Al Hassan emphasised that fraud must be distinctly proved. (DIFC Courts)

19. Fraudulent Misrepresentation

A typical fraudulent-misrepresentation analysis asks:

Was a representation made?

Was it false?

Did the representor know it was false or act recklessly?

Did the claimant rely upon it?

Did reliance induce the transaction?

Did the claimant suffer legally recoverable loss?

If the claimant proves the initial elements with sufficient evidence, the defendant may have a practical evidentiary burden to explain:

what was communicated;

what was known;

what documents existed;

why the representation was made; and

why the claimant's interpretation is wrong.

20. Negligence and the “Res Ipsa” Problem

A common-law concept sometimes discussed in negligence litigation is res ipsa loquitur—“the thing speaks for itself.”

The idea is that circumstances may themselves provide evidence of negligence.

However, this should not be mechanically treated as a general UAE civil-law rule that automatically reverses the burden.

The safer UAE approach is:

Circumstantial evidence may support an inference of negligence where the factual circumstances justify it, but the court must examine the applicable UAE statutory and evidentiary framework.

This distinction is particularly important when comparing UAE civil law with English common law.

21. Professional Negligence

Professional negligence can create a stronger practical role for burden shifting.

For example:

Lawyer

Failure to meet professional standards.

Doctor

Failure to follow applicable medical standards.

Engineer

Failure to design or inspect according to professional requirements.

Accountant

Failure to exercise required professional care.

The claimant may require expert evidence to establish the applicable standard.

Once an apparent departure is established, the professional may need to explain:

the methodology used;

decisions taken;

warnings received;

records maintained; and

reasons for the disputed conduct.

22. Digital Fraud and Negligence

Burden-shifting issues are increasingly important in:

cryptocurrency fraud;

phishing;

account takeover;

electronic signatures;

cyberattacks;

unauthorised payments;

AI-generated transactions;

smart-contract failures.

Suppose a customer says:

“My account was compromised and the bank negligently failed to detect the fraudulent transfer.”

The customer may initially establish:

account ownership;

transaction;

lack of authorisation;

notification;

loss.

The bank may possess:

authentication logs;

IP records;

device information;

fraud alerts;

transaction monitoring data.

The evidential burden may therefore become practically significant.

But the claimant still must establish the elements of the legal claim.

23. Evidence Law and Electronic Records

The UAE Evidence Law specifically recognises electronic evidence and provides mechanisms concerning its validity and probative value. (UAE Legislation)

This is highly relevant to fraud because digital fraud claims frequently depend upon:

emails;

electronic signatures;

transaction records;

authentication logs;

metadata;

blockchain transactions;

system records.

A party alleging fraud should therefore distinguish:

Evidence that a transaction occurred

from

Evidence establishing who authorised the transaction and whether the conduct was fraudulent.

24. Burden Shifting Does Not Mean Automatic Liability

This is the central rule.

Suppose:

Claimant establishes suspicious transaction.

That may create a serious evidential issue.

But:

Suspicion ≠ fraud.

Similarly:

Claimant establishes an accident.

That does not automatically establish:

negligence.

The court must still determine whether the legal elements have been established.

25. Six Core Case-Law Lessons

1. VTJ Ltd v Al Hassan [2018] DIFC CA 009

Fraud must be distinctly alleged and distinctly proved. (DIFC Courts)

2. ICICI Bank v Shetty [2022] DIFC CFI 034

A party asserting execution of guarantees cannot automatically shift the burden of proving execution/forgery to the opposing party. (DIFC Courts)

3. SBM Bank v Renish Petrochem [2018] DIFC CFI 054

Fraud remains subject to the civil standard, but its seriousness requires careful evidential assessment. (DIFC Courts)

4. Graciela Ltd v Giacobbe [2014] DIFC CFI 027

The claimant bears the burden and must establish the allegation on the balance of probabilities; seriousness affects evaluation of probabilities rather than creating a different legal standard. (DIFC Courts)

5. DAMAC Park Towers v Ward [2015] DIFC CA 006

Failure to establish fraud does not necessarily dispose of a separate negligence issue. (DIFC Courts)

6. Khaled Salem Musabeh Humad Al Mheiri v John Cameron [2025] DIFC CA 008

A finding of fraud requires identification of cogent evidence, factual findings and reasoning sufficient to reduce the risk of erroneous conclusions. (DIFC Courts)

Additional authorities

Dubai Court of Cassation Judgment No. 402/2020 — evidence and expert evaluation in civil liability.

Zuzana Kapova v Makovini [2023] DIFC CA 004 — inference and information within a party's control.

26. Practical Burden-Shifting Model

The process can be represented as:

Step 1 — Claim

Claimant alleges fraud/negligence.

↓

Step 2 — Initial proof

Claimant provides documents, testimony, expert evidence or circumstantial evidence.

↓

Step 3 — Prima facie case

Evidence becomes sufficient to require an answer.

↓

Step 4 — Evidential response

Defendant produces records, explanations, expert evidence or contrary evidence.

↓

Step 5 — Inference

Court may draw reasonable inferences from the totality of evidence, including unexplained failure to produce relevant information where appropriate.

↓

Step 6 — Final burden

Court asks whether the claimant has ultimately proved the legal claim on the applicable civil standard.

27. Important Distinction: Fraud and Negligence

The most important distinction is the mental element.

Fraud

The claimant generally has to establish dishonest or fraudulent conduct.

Negligence

The claimant generally needs to establish failure to meet the applicable standard of care, without proving intentional dishonesty.

Therefore:

A person can be negligent without being fraudulent.

And:

Failure to prove fraud does not automatically mean there was no negligence.

This distinction is reinforced by DAMAC Park Towers v Ward. (DIFC Courts)

28. Key Examination Principles

Initial burden normally rests on the party asserting the relevant fact.

Fraud must be distinctly alleged and proved.

Fraud does not automatically require a criminal standard of proof in civil litigation.

The civil standard is generally balance of probabilities.

Serious allegations require careful evaluation of the evidence.

The evidential burden can shift during proceedings.

The ultimate legal burden does not automatically shift.

Circumstantial evidence can be important.

Failure to produce evidence can sometimes support an adverse inference.

Expert evidence is particularly important in technical negligence cases.

Failure to prove fraud does not necessarily defeat negligence.

Courts must distinguish suspicion from legally sufficient proof.

29. Conclusion

The UAE approach to burden shifting in fraud and negligence is best understood as a controlled evidentiary process rather than an automatic reversal of the burden.

The claimant ordinarily begins with the burden of establishing the essential facts. In serious fraud allegations, the courts require clear and cogent evidential support while retaining the ordinary civil standard of proof. VTJ, Graciela, SBM Bank, ICICI Bank, DAMAC Park Towers, and Khaled Salem demonstrate this approach. (DIFC Courts)

In negligence, the evidential burden may become practically significant where the defendant possesses technical or documentary information necessary to explain an accident or professional decision. But the court does not automatically presume negligence merely because the defendant controls the evidence.

Exam Formula

Fraud:
Representation/Conduct + Falsity + Dishonesty + Reliance + Causation/Loss → Proof on Balance of Probabilities

Negligence:
Duty + Breach + Causation + Damage → Proof on Balance of Probabilities

Burden Shifting:
Initial Claimant Burden → Prima Facie Evidence → Evidential Response → Reasonable Inference → Final Judicial Assessment

Core principle:

Burden shifting in UAE civil litigation facilitates fair fact-finding; it does not relieve the claimant of proving the essential elements of fraud or negligence.