Continuing with reforms in judiciary and in line with Vision # 2030, Saudi Arabia promulgated the Law of Evidences on 2 January, 2022 which was published in the official gazette on 7 January, 2022. The Law has become effective on 7 July, 2022.
In essence, the Law of Evidences (Law) is a comprehensive law codifying the entire process and procedures in handling evidentiary issues. The Law covers documentary evidences, digital or electronic evidences, admissions, oaths, witness testimonies, inspection and expert reports. The Law prescribes and fixes fines for lapses, defaults, attempts to falsify or laying false accusations as well as provides for parties to claim damages for being harmed besides the provision of criminal proceedings for forgery and falsification of evidences.
The Law revokes all of the provisions related to evidences contained in the Law of Civil Procedures (58 articles) and the Law of Commercial Courts (19 articles). The Law has maintained a few provisions available under the aforesaid two laws; yet, there are sweeping changes in the means and mechanism to deal with evidences in light of the continual development in the civil and commercial arenas.
This article highlights major provisions and changes in the Law.
First and foremost, the Law is based on the premise that the plaintiff shall be obliged to prove his right and the defendant shall be entitled to deny the same thereby reiterating the universal principle that the burden of proof lies on the plaintiff.
The Law provides that only evidences which are related to the issues of the subject of the lawsuit shall be acceptable and the Law specifically disallows judges to rule on cases on the basis of their personal knowledge.
Borrowing the principle of parties’ autonomy from the arbitration principles, the Law obliges courts to accommodate any agreement between the parties in regard of evidentiary issues; provided the agreement is in writing, a provision which was hitherto not available in the courts procedural laws. Similarly, it requires the courts to apply the conclusions of the expert in full if the parties had such an agreement before the lawsuit was raised.
The Law allows the court to reject wholly or partially the outcome of any evidentiary procedure provided it narrates reasons for rejection in the judgment.
The Law enables the courts to consider evidentiary procedures taken outside Saudi Arabia as long as it does not violate public order.
An admission shall be considered judicial only if the party admits before the court during the hearings of the subject case and which shall be treated as conclusive. If an admission is made outside the court or during other hearings, the admission shall not be treated as judicial. An admission shall only be accepted if the party has full capacity and it could be explicit or implicit and oral or written. An admission which cannot be accepted as judicial shall be considered as a testimony and accepted in accordance with the provisions related to testimonies.
Besides the court interrogating a party on its own or upon request by the other party, the parties to the dispute may interrogate each other directly, a provision which was not available in the Law of Civil Procedures although the parties in the commercial lawsuits could interrogate directly under the supervision of the judge.
The parties will be required to answer in the same hearing unless the court provides them time for answering. A party may object to a question addressed to it; however, it will have to give reasons for its objection. The court may not allow questions if not related to the case or deemed to be non-productive in the case or for any other valid reason, a provision which was not provided in the previous laws.
The Law requires that whoever is summoned by the court for questioning, the person will be obliged to appear and answer the questions during the hearing scheduled and in case a person absents to provide answers without any acceptable excuse or avoids answering, the court may conclude what it deems appropriate and consider witness testimonies and other evidences which are otherwise not permissible on those issues.
The Law defines in a greater detail the manner in which documentary evidences shall be dealt and what shall constitute official documents and non-official documents; their validity, importance and means of challenges available to parties.
An official document shall be considered a complete evidence for the purpose presented as long as the document was prepared by the entity having jurisdiction or appointment to do so. Unlike in the Civil Procedures Law, which requires at least an attested true copy of an official document to be accepted as a documentary evidence, the new Law allows a copy of the official document in case the original is not available as long as there are no doubts of it being not identical to the original.
The Law stipulates that a documentary evidence shall be considered duly issued by the person unless he denies the writing, signature or seal contained therein. Objections on veracity or authenticity of a non-official document shall not be entertained if the party objecting it had discussed the subject contained in the document earlier.
The Law stipulates that the official registers or records which a merchant is statutorily obliged to maintain shall not be considered as evidence against non-merchants. However, such a register can be presented as an evidence by a merchant who maintains it against another merchant whose status as evidence would become void if it is proved otherwise by other evidences including the official register of the opponent merchant.
A party in a commercial dispute may request the court to oblige the opponent to present a documentary evidence held by him in the cases where the document was jointly entered or if the opponent had relied on it during any stage of the lawsuit. However, the documentary evidence which a party is requesting to be provided should not have the element of confidentiality by virtue of an agreement between the parties or the access to such a document should not result in violation of the party’s right to confidentiality, trade secret or related rights.
The Law has laid detailed provisions to deal with the challenges to the correctness of written documents including allegations of fabrication and forging of documents. It has set penalties in either case as well as provides for criminal prosecution and damages to parties occurring due to the presentation of false documents as evidences and penalties for laying accusation of forgery (if proven wrong).
One of the important sections in the Law relates to treatment of ‘digital evidence’ as a documentary evidence. The provision is briefly accommodated in the Commercial Courts Law and the Civil Procedural Law is devoid of it. The Law includes under digital evidence classification digital records, digital documents, digital signatures and all digital or electronic communication including emails. They shall all be treated as documentary evidences in the manner as provided by the Law for such evidences.
The party which contests the veracity of the digital document will carry the burden to prove their contention in the same manner as stipulated for other documentary evidence.
One of the key features of the Law is limiting witness testimony to dispositions below the sum of SR. One Hundred Thousand for dispositions which exceed SR. One Hundred Thousand or where the amount is unspecified, the courts shall require documentary evidence in case there is no agreement in this respect between the parties. This provision will drastically reduce the incidences of false claims and claims which do not have strong evidence.
Even in cases where the amount of disposition does not exceed SR. One Hundred Thousand; witness testimony shall not be accepted if the Law requires the evidence to be in writing or it is in conflict or exceeds from what is contained in the documentary evidences thereby reducing the weightage of witness testimonies.
As an exception, the Law allows witness testimony in cases where the plaintiff had lost the documentary evidence due to a reason not related to him or where the principle ground of the claim was proven through documentary evidence.
The Law restricts persons having interest or benefits from the lawsuit nor from parents or grand-parents for children or grand-children and the vice versa as well as the wife for the husband and the vice versa.
It sets procedures and requirements for parties to present witnesses for testimonies. Similar to the provision allowing a party to interrogate the other party, it allows parties to address questions to the witness or cross examine witnesses and the other party may object to a question provided that it gives reasons for the objection. A witness may decline to answer a question; but he will have to provide reasons for not answering.
Customs and Norms
Customs and norms between parties would constitute valid evidences provided that there is no agreement between the parties otherwise or it is in conflicts with the public law. The Law stipulates that in case of conflict, the customs and practice between the parties shall prevail over the general custom.
The Law deals at length in prescribing rules for taking and administering oaths. While it stipulates that an oath by a defendant for negating a claim shall be treated as a conclusive oath, it can be objected by the plaintiff. However, an oath by a plaintiff shall be considered supplementary to complement the evidence presented by the plaintiff and cannot be objected by the defendant. The person taking oath must have the capacity to dispose on the matter on which he is taking the oath and the person cannot delegate others to take oath on his or her behalf. The court may decline oath if it is not related to the case or believes it not to be productive or non-acceptable.
In case a plaintiff is not able to provide documentary or other evidences to support his claim, he may request the defendant to swear and if he refuses to swear, the plaintiff may take an oath and if he too declines, the claim shall be dismissed by the court. A plaintiff may abort evidences presented to the court and request for an oath from the defendant instead.
Conversely, a plaintiff who had requested for an oath before presenting evidences may abort his request and replace it with evidences after notifying the court in this regard. The Law provides that a party may seek compensation in case a criminal court rules that the other party had lied while taking oath as well as object the ruling issued on the basis of that oath in which there was an element of lie as confirmed by the ruling issued by the criminal court.
A court may, on its own accord or upon request by a party, decide to conduct an inspection by notifying the parties at least 24 hours in advance and may appoint an expert to assist it or hear any witness it may deem appropriate.
The Law stipulates in great detail the requirements and procedures of appointing experts to review technical issues surrounding the case as well as the obligations of the expert and the litigants.
The court may, on its own accord, or upon request by a party, appoint an expert or several experts to provide their opinion on technical issues related to the dispute. The Law prescribes in detail the responsibility and powers of the expert so appointed as well as the timelines, disqualification and the rights of the parties in seeking clarifications from the expert. It also prescribes fines not exceeding SR. Ten Thousand upon a litigant who caused delay in the submission of report by the expert and similar fine upon the expert if he delayed in submitting the report within 15 days from the date set for completion of the task.
In case of agreement by parties in selection of expert, the court will endorse it. Similarly, if agreed by the parties (before initiation of the case), the courts shall be obliged to apply the results or conclusions presented by the experts in the ruling on the case as long as it does not violate public order, an autonomy to the parties which was hitherto not available.
However, in all other cases, courts shall not be obliged to accept the conclusions of the expert. Nevertheless, the courts are required to narrate the reason for not accepting some or all conclusions of the experts in their judgments, a provision which does not exist in any of the laws of courts procedures. The court may also rely on an expert’s report submitted in another lawsuit, however, without prejudice to the litigants’ right to discuss and raise objections.
In short, the Law makes application of procedures related to evidences clear and enables parties to determine the types of evidences to present before the court and the defense available to them beforehand. It also provides parties to agree on evidentiary procedures beforehand as well as the autonomy to agree that they will consider expert’s report as binding and the courts shall be obliged to issue rulings based on such reports.
Al Ghazzawi & Partners