Civil Law and UAE – Preservation of Evidence Orders

1. Introduction

Preservation of evidence orders are urgent judicial measures designed to prevent important evidence from being destroyed, altered, concealed, deteriorated, or otherwise becoming unavailable before it can be properly examined in a civil or commercial dispute.

Under UAE law, preservation of evidence is particularly important where the physical condition of property, construction defects, machinery, cargo, documents, electronic systems, or other factual circumstances may change before the main dispute is determined.

The current UAE Evidence Law is Federal Decree-Law No. 35 of 2022, which entered into force on 2 January 2023. It contains specific procedures for inspection, recording the existing condition of evidence, witness preservation, and court-appointed experts.

A major distinction must be made between:

• preserving evidence, and
• deciding the merits of the dispute.

The preservation court normally records the existing factual condition without finally deciding who is liable.

2. Meaning of Preservation of Evidence

Preservation of evidence means taking judicial steps to ensure that evidence which may later become unavailable remains capable of being proved and examined.

Examples include:

• inspecting a defective building before repairs;
• photographing damaged machinery;
• recording the condition of cargo before discharge;
• examining a vessel before it leaves UAE waters;
• preserving computer or electronic evidence;
• recording the condition of construction works;
• hearing testimony from a witness whose evidence may later become unavailable;
• appointing an expert to inspect property;
• recording technical defects before they are repaired or altered.

The central idea is:

Preserve the evidence first; decide liability later.

3. Statutory Framework

The principal framework consists of:

A. Federal Decree-Law No. 35 of 2022 – Law of Evidence

The Evidence Law provides specific mechanisms for:

• inspection;
• establishment of the existing condition;
• preservation of testimony;
• appointment of experts;
• urgent expert measures;
• access to documents and records;
• inspection of facilities, places and objects.

Article 108 is particularly important where a person fears that the factual features of an incident may disappear before the matter becomes the subject of litigation. Articles 109–121 regulate expert appointment and the expert's powers and duties.

B. Federal Decree-Law No. 42 of 2022 – Civil Procedure

The urgent/provisional jurisdiction of the courts complements the Evidence Law. Preservation measures are generally procedural and precautionary rather than final determinations of substantive rights.

C. Federal Arbitration Law No. 6 of 2018

In arbitration-related disputes, preservation of evidence may be sought through the arbitral tribunal and, where appropriate, through court assistance. UAE arbitration law expressly recognises interim measures concerning preservation of evidence.

D. DIFC and ADGM

The position is more expressly developed in the financial free zones.

For example, DIFC Rules permit:

• detention, custody or preservation of property;
• inspection;
• sampling;
• entry onto premises;
• delivery-up orders;
• search orders specifically for preserving evidence;
• pre-action document production;
• non-party document production. 

4. Article 108 – Preservation Through Inspection

Article 108 is the principal mainland UAE mechanism.

Where a person fears that the characteristics or features of an incident may be lost before it becomes the subject of litigation, an urgent application may be made for inspection and recording of the existing condition.

The court may appoint an expert to:

1. visit the relevant location;
2. inspect property;
3. examine physical conditions;
4. hear relevant statements where authorised;
5. prepare a technical report;
6. record the condition existing at that time.

This is extremely useful in construction, engineering, maritime, insurance, manufacturing and technology disputes.

5. Role of the Court-Appointed Expert

The expert is not normally appointed to finally decide liability.

Under the Evidence Law, the expert's assignment should identify the task and powers granted to the expert, including any urgent measures authorised.

The expert may, where authorised:

• hear parties;
• obtain documents and records;
• inspect premises;
• inspect objects;
• examine technical conditions;
• conduct necessary technical investigation.

Article 115 permits an expert to request documents, records and access to facilities and objects necessary for the task. Article 116 provides mechanisms where a person unjustifiably obstructs the expert.

Important limitation

The expert's report is evidence, not automatically a final judgment.

The court may accept, reject, or modify the weight given to the expert's conclusions.

6. Essential Requirements for a Preservation Order

A successful application generally requires the applicant to establish:

1. Existence of relevant evidence

The evidence must relate to an identifiable factual issue.

2. Risk of loss or alteration

There should be a genuine concern that the evidence may:

• disappear;
• deteriorate;
• be repaired;
• be destroyed;
• be modified;
• become inaccessible.

3. Relevance

The evidence should have a meaningful connection with the anticipated or existing dispute.

4. Urgency

The applicant should demonstrate why waiting for ordinary litigation could prejudice the evidentiary position.

5. Limited purpose

The application should preserve evidence rather than ask the summary court to finally determine liability.

7. Preservation Does Not Determine the Merits

This is one of the most important principles.

Suppose a contractor constructs a building and serious cracks subsequently appear.

The owner may seek an urgent expert inspection before:

• the cracks are repaired;
• the building is modified;
• the defective materials are removed;
• weather conditions alter the damage.

The expert may record:

• location of cracks;
• dimensions;
• photographs;
• construction condition;
• materials;
• technical observations.

But the preservation proceeding should not ordinarily finally determine:

“The contractor is legally liable for AED X.”

That question belongs to the substantive proceedings or arbitration.

8. Preservation of Physical Evidence

Physical evidence can deteriorate very quickly.

Examples include:

• damaged machinery;
• construction defects;
• vehicles after accidents;
• defective products;
• damaged cargo;
• perishable goods;
• industrial equipment;
• structural defects;
• water damage;
• fire damage.

The court-appointed expert can create a contemporaneous technical record.

This is particularly important where subsequent repairs might make it impossible to establish the original condition.

9. Preservation of Electronic Evidence

Modern preservation increasingly concerns:

• emails;
• server logs;
• CCTV;
• cloud records;
• databases;
• transaction records;
• metadata;
• mobile-device information;
• blockchain records;
• electronic contracts;
• digital communications.

The UAE Evidence Law recognises electronic evidence and modern technological methods of evidence. The UAE's evidentiary framework also permits electronic and remote procedures.

However, electronic preservation should be conducted carefully because it can raise:

• privacy;
• confidentiality;
• privilege;
• personal-data protection;
• cybersecurity;
• authenticity;
• chain-of-custody issues.

10. Preservation of Witness Evidence

Preservation is not limited to physical objects.

Article 83 provides a mechanism where a person fears losing the opportunity to obtain testimony from a witness concerning a matter not yet before the court but likely to become the subject of litigation.

The court may hear the witness where the statutory requirements are satisfied.

Examples include:

• seriously ill witnesses;
• elderly witnesses;
• witnesses intending to leave the jurisdiction;
• witnesses whose availability may later become difficult.

Thus, testimony itself can be preserved.

11. Preservation Orders and Arbitration

Preservation becomes particularly important when the underlying dispute is subject to arbitration.

A party may argue:

“The merits belong to arbitration, therefore the court cannot intervene.”

That proposition is too broad.

A preservation application generally does not decide the merits. It merely protects evidence that the future tribunal may need.

The UAE arbitration framework recognises interim measures concerning preservation of evidence.

This principle was illustrated particularly clearly in Brookfield Multiplex.

12. Preservation Orders and Search Orders – Important Difference

A preservation order is not necessarily a search order.

Mainland UAE

The mainland system principally relies upon:

• urgent inspection;
• recording existing conditions;
• court-appointed experts;
• evidentiary procedures.

A general English-style physical search of the defendant's premises is not ordinarily available as a general civil preservation mechanism onshore.

DIFC

The DIFC Rules expressly provide a search order requiring a party to admit another party to premises for the purpose of preserving evidence.

Therefore:

13. Case Laws

Case 1 – Brookfield Multiplex Constructions LLC v DIFC Investments LLC & DIFC Authority [2016] DIFC CFI 020

This is one of the most important UAE authorities on preservation of evidence.

The dispute concerned alleged defects in the DIFC Gate Building. The Dubai Courts had appointed an engineering expert to inspect the building even though the underlying contract contained an arbitration agreement.

The DIFC Court explained that the UAE procedural mechanism allowed a person fearing loss of factual evidence to seek inspection and expert appointment. It emphasised that such proceedings were precautionary and did not determine the substantive rights of the parties.

The court also discussed two Dubai Court of Cassation authorities:

• Civil Appeal No. 274/1993, judgment of 29 January 1994
• Civil Appeals Nos. 340 and 343/2009, Principle No. 54, judgment of 25 April 2010

The latter concerned the appointment of an engineering expert where material facts might be lost or become impossible to establish later.

Principle

Preservation of evidence does not necessarily interfere with the jurisdiction of an arbitral tribunal because the preservation proceeding does not determine the substantive dispute.

Case 2 – GFH Capital Limited v David Lawrence Haigh [2014] DIFC CFI 020

This case involved a DIFC search order together with a freezing order.

The Court granted a search order concerning the defendant's premises and evidence, including electronic information. The procedural framework required safeguards concerning:

• supervision;
• access;
• privilege;
• legal advice;
• handling of documents;
• compliance with the order.

The later judgment also dealt with the defendant's failure to comply with the search order and emphasised the seriousness of such court orders.

Principle

A preservation/search order can be enforced seriously, and compliance with its procedural safeguards is essential.

Case 3 – SKAT v Elysium Global (Dubai) Limited & Elysium Properties Limited [2018] DIFC CFI 048

This case involved extensive search and freezing orders.

The DIFC Court dealt with information and documents obtained through search orders and considered questions concerning their subsequent use and privilege.

The Court's orders also addressed the use of information obtained through the search process in related proceedings.

Principle

Preservation and search orders must be accompanied by controls governing:

• confidentiality;
• privilege;
• subsequent use;
• supervision;
• procedural fairness.

Case 4 – Neal v Nadir [2024] DIFC CA 001

The DIFC Court of Appeal considered the nature of interim measures in an arbitration context.

The judgment discussed the statutory concept of an interim measure, including an order requiring a party to preserve evidence relevant and material to the resolution of the dispute.

Principle

Preservation of evidence is recognised as a legitimate form of interim relief in arbitration and does not necessarily constitute a final determination of the dispute.

Case 5 – Globe Investment Holdings Limited v Commercial Bank of Dubai & Ors [2024] DIFC CFI 028

This case concerned the treatment of documents that had been made available for inspection.

The DIFC Court considered circumstances in which documents may have been disclosed or inspected by mistake and recognised that the court can intervene to prevent inappropriate use where justice requires.

Principle

Preservation and production of evidence do not eliminate the court's responsibility to protect:

• privilege;
• confidentiality;
• fairness;
• proper use of documents.

Evidence obtained through procedural mechanisms remains subject to judicial control.

Case 6 – Asif Hakim Adil v Frontline Development Partners Limited [2014] DIFC CFI 015

This authority is important for understanding the difference between production and admissibility.

The DIFC Court treated document production and admissibility as distinct questions and recognised protection for certain without-prejudice material.

Principle

Preserving or producing evidence does not automatically mean that the evidence will ultimately be admissible.

Therefore:

Preservation ≠ production ≠ admissibility ≠ proof of liability.

These are separate procedural questions.

Case 7 – Levent & Lexie v Lilika [2021] DIFC CFI 030

The case concerned the DIFC framework for obtaining evidence.

The relevant DIFC rules allow orders concerning:

• production of documents;
• inspection;
• preservation;
• custody or detention of property;
• sampling;
• experiments;
• examination of witnesses. 

Principle

The court possesses a broad procedural toolkit for securing evidence where necessary for judicial proceedings, subject to the statutory safeguards governing the particular remedy.

14. Important Procedural Safeguards

Because preservation orders can interfere with property and privacy, courts must maintain proportionality.

Important safeguards include:

A. Specificity

The order should identify the evidence or category of evidence concerned.

B. Relevance

The evidence must be connected to the dispute.

C. Urgency

The applicant should explain why ordinary proceedings are insufficient.

D. No fishing expedition

A preservation mechanism should not become a general investigation into the opponent's affairs.

E. Privilege

Legally privileged material must receive appropriate protection.

F. Confidentiality

Sensitive commercial information should be handled carefully.

G. Due process

The respondent should generally receive an opportunity to participate, subject to the exceptional nature of appropriate without-notice procedures.

H. Undertakings/security

Particularly intrusive interim remedies may involve undertakings or security against wrongful harm.

15. Preservation of Evidence in Construction Disputes

This is perhaps the clearest practical application.

Suppose:

Owner → discovers structural defect → contractor proposes immediate repair.

If the owner allows the repair to occur without documentation, the original condition may disappear.

A preservation application can seek:

1. urgent inspection;
2. appointment of an engineer;
3. photographs;
4. measurements;
5. material sampling where appropriate;
6. recording of the existing condition;
7. technical report.

The later tribunal or court can then consider the preserved evidence.

This was essentially the evidentiary problem addressed in Brookfield Multiplex.

16. Preservation in Maritime Disputes

Maritime disputes are especially sensitive because:

• ships move;
• cargo is discharged;
• machinery is repaired;
• perishable goods deteriorate;
• evidence may disappear quickly.

UAE practice permits urgent preservation mechanisms, including inspection and expert examination under the Evidence Law. Article 108 can be particularly relevant to preserving the condition of vessels, cargo and machinery.

17. Preservation and Electronic Evidence

A modern preservation order may need to address:

• server data;
• email accounts;
• CCTV footage;
• access logs;
• transaction databases;
• cloud-stored information;
• mobile devices;
• metadata.

The preservation process should ideally maintain:

Original Data → Forensic Preservation → Authentication → Chain of Custody → Expert Analysis → Court/Tribunal

A party should avoid altering the original evidence merely while attempting to preserve it.

18. Preservation and Privacy

Preservation does not give an unlimited right to inspect another person's private information.

An order should balance:

Need to preserve evidence

against

Privacy + confidentiality + privilege + proportionality.

This is particularly significant for:

• employee computers;
• personal mobile phones;
• medical records;
• confidential business information;
• client communications;
• personal data.

DIFC search-order procedures contain detailed safeguards concerning privilege, legal advice and the manner in which the order is executed.

19. Preservation Versus Discovery

The concepts should not be confused.

The DIFC Rules expressly provide separate mechanisms for preservation and document production.

20. Preservation Versus Freezing of Assets

These are also different.

Preservation of evidence

Protects proof.

Freezing order

Protects assets.

For example:

A freezing order may prevent a defendant from transferring AED 20 million.

Whereas:

A preservation order may protect CCTV footage showing how the transaction occurred.

The two remedies may sometimes be requested together.

21. Effect of Non-Compliance

Non-compliance can have serious consequences.

Depending on the jurisdiction and order, consequences may include:

• contempt proceedings;
• adverse procedural consequences;
• costs orders;
• enforcement measures;
• adverse evidentiary inferences where legally justified;
• sanctions for obstructing an expert;
• other remedies ordered by the court.

The DIFC framework expressly treats breach of search orders seriously, while the UAE Evidence Law also contains mechanisms for dealing with obstruction of court-appointed experts.

22. Preservation of Evidence and Burden of Proof

Preservation does not transfer the substantive burden of proof automatically.

The claimant normally remains responsible for establishing the facts necessary for the claim.

The preservation mechanism merely ensures that relevant evidence remains available.

Therefore:

Preservation protects the opportunity to prove; it does not itself prove the claim.

23. Practical Example

Scenario

A contractor constructs a warehouse.

After completion:

• cracks appear;
• water enters the building;
• the contractor proposes immediate repairs;
• the owner expects arbitration.

Problem

After repairs, it may become difficult to determine:

• how serious the cracks originally were;
• where they existed;
• whether the waterproofing was defective;
• what materials were used;
• whether the damage was caused by design or workmanship.

Solution

The owner may seek an urgent preservation/inspection procedure.

The expert can:

1. inspect the warehouse;
2. photograph the defects;
3. measure the cracks;
4. inspect relevant materials;
5. review available documents;
6. record the existing condition;
7. prepare a report.

The later court or arbitral tribunal can consider that evidence when deciding the substantive dispute.

24. Key Legal Principles

Principle 1 – Preservation is precautionary

Its purpose is to prevent evidentiary loss.

Principle 2 – It does not normally determine liability

The substantive dispute remains for the competent court or tribunal.

Principle 3 – Urgency matters

The applicant should demonstrate a real risk of evidentiary deterioration or loss.

Principle 4 – Relevance is necessary

The evidence must relate to an identifiable dispute.

Principle 5 – Experts are important

Technical disputes frequently require expert inspection.

Principle 6 – Arbitration does not necessarily prevent preservation

A court can have a supporting role where preservation does not determine the merits.

Principle 7 – Preservation is distinct from admissibility

Preserving evidence does not guarantee that it will ultimately be admissible.

Principle 8 – Privacy and privilege remain relevant

The remedy must be appropriately limited.

Principle 9 – DIFC provides stronger express search mechanisms

The DIFC Rules expressly recognise search orders for preservation of evidence.

Principle 10 – Evidence must remain reliable

The purpose is to preserve the evidentiary condition, not to manufacture evidence.

25. Mainland UAE and DIFC Comparison

26. Exam-Ready Formula

Remember:

Relevant Evidence + Risk of Loss + Urgency + Judicial Inspection/Expert + Preservation of Existing Condition = Preservation of Evidence Order

For a problem question:

Identify the Evidence → Identify the Risk of Loss → Establish Urgency → Seek Inspection/Expert → Record Existing Condition → Protect Privilege/Confidentiality → Preserve Evidence → Determine Merits Later

27. Important Case-Law Revision Table

The Brookfield judgment is particularly valuable because it records and discusses the relevant Dubai Court of Cassation principles concerning precautionary proceedings and evidence that may otherwise be lost.

28. Conclusion

Preservation of evidence orders under UAE civil law are precautionary judicial mechanisms designed to protect the integrity and availability of evidence before it disappears or changes.

The current Evidence Law, particularly Articles 108 onward, provides an important mainland UAE mechanism through urgent inspection and expert appointment. The expert can document the existing condition of property or other factual circumstances without finally determining the substantive rights of the parties.

The principle is especially important in construction, maritime, engineering, insurance, commercial, technology and arbitration disputes.

The DIFC framework goes further by expressly providing search orders, preservation orders, inspection orders and document-production mechanisms, with detailed procedural safeguards.

One-line revision point:

A preservation of evidence order protects the factual foundation of a future civil claim; it preserves evidence without prematurely deciding the underlying legal dispute.