Rules of Evidence and Disclosure of Documents in Civil Proceedings

Overview

Evidence plays a crucial role in the administration of justice, ensuring fair and objective outcomes in legal proceedings. The litigating parties’ use of evidence was previously governed by Chapter 2 of Bahrain Decree-Law No. 12/1971 On the Issuance of the Civil and Commercial Procedures Law (“Civil and Commercial Procedures Law”), which was then repealed by Bahrain Decree-Law No. 14/1996 on the Issuance of the Law of Evidence in Civil and Commercial Matters and the amendments thereof (“Law of Evidence”). Bahrain Decree-Law No. 14/1996 is considered the core legislation governing the rules of evidence in the Kingdom of Bahrain.

In 2021, amendments to Bahrain Decree-Law No. 14/1996 came into force by virtue of Bahrain Decree-Law No. 28/2021. The amendments were introduced to enhance the quality and efficiency of the judicial system in the Kingdom of Bahrain, to streamline the process of hearing cases before the civil and commercial courts, and to reduce the time and effort spent by the parties to the dispute.

The Bahrain Chamber for Dispute Resolution (“BCDR”) issued a bespoke set of procedural rules governing the resolution of disputes (Bahrain Resolution No. 134/2021), which include the rules of evidence that are admissible before the BCDR courts. It is worth noting that the rules of evidence admissible before the BCDR courts are materially similar to those under the Bahrain Decree-Law No. 14/1996 .

The purpose of this Practice Note is to provide an overview of the rules of evidence in the Kingdom of Bahrain, focusing on the types of evidence admissible before the civil and commercial courts and the principles of disclosure and legal privilege.

Practical Guidance

The Kingdom of Bahrain follows an inquisitorial system whereby the judges of the civil and commercial courts are given the discretion to actively assess evidence and ensure they are sufficient to issue a proper and just judgment.

Bahrain Decree-Law No. 14/1996 grants the court the power to commence the procedures of evidence (article 3 of Bahrain Decree-Law No. 14/1996) and order the enforceability and validity of written documents submitted by the parties to the dispute (articles 9-60 of Bahrain Decree-Law No. 14/1996).

Where the evidence submitted is deemed by the court insufficient or unreliable, the court is also given the power to inter alia authorise the litigants to prove their claim by way of witness testimony (articles 61-96 of Bahrain Decree-Law No. 14/1996), authorise a party-appointed expert to commence their mandate (articles 132-158 of Bahrain Decree-Law No. 14/1996), conduct an interrogation of the parties to the dispute (articles 105-112 of Bahrain Decree-Law No. 14/1996), and order the direction of oath to settle the dispute (articles 113-128 of Bahrain Decree-Law No. 14/1996).

The most prominent types of evidence stipulated under Bahrain Decree-Law No. 14/1996 and which are admissible before the civil and commercial courts are analysed in the section below.

Types of Evidence

1. Written evidence

Written evidence, whether submitted in the form of an official/public document or a customary/private document, are a known method of proof used in the Bahrain courts.

It is worth noting that the law regulating electronic transactions in the Kingdom of Bahrain grants electronic records (i.e., information generated, sent, received, or stored by electronic means) as having the same evidential weight/binding force as that accorded to customary/private documents, and the same evidential weight as official/public documents under the Law of Evidence when certain conditions have been met (article 5(a) of Bahrain Decree-Law No. 54/2018 on the Issuance of the Electronic Communications and Transactions Law).

1.1. Official/public documents

Official/public documents are documents issued by a public body or an individual entrusted with public service (article 9 of Bahrain Decree-Law No. 14/1996) and are enforceable against all individuals with respect to the content stated therein (article 10 of Bahrain Decree-Law No. 14/1996) (“Official Documents”).

The validity and enforceability of Official Documents can only be challenged by a plea of forgery (article 10 of Bahrain Decree-Law No. 14/1996 and article 30 of Bahrain Decree-Law No. 14/1996). The procedure for making a plea of forgery is set out under Section 2 of Chapter 4 of the Bahrain Decree-Law No. 14/1996.

Article 50 of Bahrain Decree-Law No. 14/1996 provides that a party can make a plea of forgery “at any stage of the litigation by submitting a report to the Clerk’s office” and the report should contain a description of all the points of the alleged forgery. Otherwise, the report will be deemed null and void.

The court shall order the investigation of the contested document if the court deems that:

• The plea of forgery is necessary for the dispute.
• The facts of the claim and the evidentiary documents submitted are insufficient to determine the validity of the
  contested document.
• The request for investigation is necessary and permissible

(Article 53 of Bahrain Decree-Law No. 14/1996)

1.2. Customary/private documents

Documents that do not acquire an official status (i.e., those that are not issued by a public body or an individual entrusted with a public service) shall have the value of a customary/private document, provided that it bears the signature, seal, or fingerprint of the concerned individual who issued the document (“Customary Documents”) (article 9 of Bahrain Decree-Law No. 14/1996 and article 13 of Bahrain Decree-Law No. 14/1996).

The validity and enforceability of Customary Documents can be challenged by a plea of forgery pursuant to the procedures set out above and by an application for the denial of the handwriting, seal, signature, or fingerprint (article 30 of Bahrain Decree-Law No. 14/1996). The procedure for making an application for the denial of the handwriting, seal, signature, or fingerprint is set out under Section 1 of Chapter 4 of Bahrain Decree-Law No. 14/1996.

Article 31 of Bahrain Decree-Law No. 14/1996 provides that the court shall order the investigation of the contested document by way of comparison or by witness testimony, or both if:

• The party against whom the document is attributed denies their handwriting, signature, seal or fingerprint.
• The contested document is necessary for the dispute.
• The facts of the claim and the evidentiary documents submitted are insufficient to form an opinion with respect to the validity of the handwriting, signature, seal, or fingerprint.

2. Witness evidence

Bahrain Decree-Law No. 14/1996 sets out conditions for establishing evidence by way of witness testimony. Articles 63-64 of Bahrain Decree-Law No. 14/1996 provide that witness testimony can be used to establish evidence in matters which had to be proved by written evidence if:

• The evidence in writing was available.
• A material or moral impediment exists which prevents obtaining the written evidence.
• If the creditor loses their written proof for a reason beyond their control.

However, Bahrain Decree-Law No. 14/1996 restricts witness testimony in non-commercial matters if the value of the legal transaction exceeds BHD 500 or is undetermined unless an agreement or a provision stipulates otherwise (article 61 of Bahrain Decree-Law No. 14/1996). Additionally, Bahrain Decree-Law No. 14/1996 restricts the use of witness testimony in all circumstances, even if the value of a legal transaction does not exceed BHD 500, if:

• It violates or exceeds that which is contained in written evidence.
• If the claim is related to a balance or is part of a right which may not be proved except by writing.
• If a party claims an amount exceeding BHD 500 and then renounces such an excess (article 62 of Bahrain Decree-Law No. 14/1996).

2.1. Procedure for establishing evidence by witness testimony

A request to establish evidence by way of witness testimony is often initiated by a party to the dispute by demonstrating to the competent court, either in writing or orally during the hearing, the facts to be proved by witness testimony, the names of the witnesses, and their residence (article 69 of the Law of Evidence). Nevertheless, article 71 of Bahrain Decree-Law No. 14/1996 grants the court the power to order the evidence by way of witness testimony in cases where “evidence by witness testimony isauthorised by law and wherever it deems it appropriate to reveal the truth”.

The judgment ordering the submission of evidence by way of witness testimony must contain the facts to be proven, the day the investigation shall commence, and the deadline thereof (article 72 of Bahrain Decree-Law No. 14/1996).

Unlike common law jurisdictions, the testimony of the witnesses shall be oral, and no written memorandums may be used unless authorised by the court (article 88 of Bahrain Decree-Law No. 14/1996). Questions are addressed to the witness by the court. The witness shall first answer the questions of the party who brought them as a witness and then the questions of the opposing party. The court has the discretion to directly ask the witness any questions deemed useful to determine the outcome of the dispute (articles 85 of Bahrain Decree-Law No. 14/1996 and Article 87 of Bahrain Decree-Law No. 14/1996).

The court shall record the testimony of the witnesses in an investigations report, which shall be signed by the witnesses (article 89 of Bahrain Decree-Law No. 14/1996).

3. Presumptions and Force of res judicata

3.1. Presumptions

There are two types of presumptions that are admissible as evidence in the Bahrain courts, namely, presumptions provided for by law and judicial presumptions (i.e., presumptions not provided for by law). Article 97 of Bahrain Decree-Law No. 14/1996 provides that presumptions provided for by law shall “dispense the party in favour of whom they have been determined from any other evidence”. Such presumptions may be invalidated through counter-evidence.

On the other hand, judicial presumption is where the court draws out each presumption from the circumstances of the case and indicates the extent of their significance. However, evidence may not be established by these presumptions save in cases where the submission of evidence is made by way of witness testimony (article 98 of Bahrain Decree-Law No. 14/1996).

3.2. Force of res judicata

Judgments that have acquired the force of res judicata shall be considered as evidence, and no evidence contradicting and/or brought against this may be accepted. However, judgments shall only have the force of res judicata in a dispute arising between the litigants having the same capacity and related to the same object and cause (article 99 of Bahrain Decree-Law No.14/1996).

4. Admission

Admission has been defined under article 101 of Bahrain Decree-Law No. 14/1996 as an acknowledgment made by a party of a legal fact claimed against them, through which the party intends to assume liability thereof. There are two types of admission, namely, judicial and non-judicial.

Judicial admission is the acknowledgment made by a party before the court of the legal fact claimed against them during the course of the judicial proceedings (“Judicial Admission”). Judicial Admission is considered conclusive evidence against the party who has made the admission/acknowledgment and is binding on the court (articles 102 and 104 of Bahrain Decree-Law No. 14/1996).

On the other hand, non-judicial admission is the acknowledgment made by a party of a legal fact claimed against them outside the court (“Non-Judicial Admission”). The general rules of evidence shall apply in the establishment of Non-Judicial Admissions (article 103 of Bahrain Decree-Law No. 14/1996).

5. Interrogation

Article 105 of Bahrain Decree-Law No. 14/1996 grants the court the power to interrogate the parties to the dispute, whether at its discretion or at the request of any of the parties. Additionally, the court has the discretion to reject a party’s request for interrogation if it deems that the dispute does not require interrogation (article 107 of Bahrain Decree-Law No. 14/1996).

6. Oath

Oaths, whether decisive or suppletory, are a known method of evidence used in the Bahrain courts. Oaths are commonly used by the parties as a last resort in order to settle the dispute.

6.1. Decisive oath

Article 113 of the Law of Evidence defines a decisive oath as an oath directed by one of the parties to the other in order to settle the dispute (“Decisive Oath”). Decisive Oaths can be directed by the parties irrespective of the status of the case, and the party to whom the oath is directed can return the oath back to the opposing party (article 114 of Bahrain Decree-Law No. 14/1996).

Judgment shall be rendered in favour of the party that takes the Decisive Oath directed to them. In the event that the party abstains from taking the Decisive Oath without returning it back to the opposing party, the party loses their claim. Similarly, if the party to whom the Decisive Oath was returned back to abstains from taking the oath, the party loses their claim (article 125 of Bahrain Decree-Law No. 14/1996).

6.2. Suppletory oath

Article 126 of Bahrain Decree-Law No. 14/1996 defines a suppletory oath as an oath directed by the court to any of the parties in order to base its judgment concerning the subject-matter of the claim (“Suppletory Oath”). The party to whom the court has directed the Suppletory Oath may not return it back to the opposing party.

7. Inspection

Inspection is another method of evidence admissible in the Bahrain courts.

Article 129 of Bahrain Decree-Law No. 14/1996 grants the court the power to decide, whether at its discretion or at the request of any of the litigants, to inspect the disputed matter/object. The court shall issue a report indicating all the activities related to the inspection. Otherwise, the inspection shall be considered void.

8. Expert evidence

Bahrain Decree-Law 28/2021 Amending Bahrain Decree-Law No. 14/1996 introduced amendments to the provisions relating to the use of expert and expert evidence in civil and commercial proceedings in the Kingdom of Bahrain.

The key amendment of Bahrain Decree-Law 28/2021 is the possibility for the parties to the dispute to appoint an expert, even prior to filing a claim. Article 132 of Bahrain Decree-Law No. 28/2021 now provides that “the litigants may, sua sponte, resort to expertise, and they may do so before filing the lawsuit, and any of them may appoint an expert who shall be independent of the other or agree to appoint a joint expert.”

Whilst it was still possible for the parties to contract with an expert and submit their report prior to the amendments introduced by Bahrain Decree-Law 28/2021, this would only occur after the court authorises the appointment of the expert. More importantly, Bahrain Decree-Law 28/2021 omits a reference to the court’s discretion to appoint an expert.

Notwithstanding the aforementioned, article 139 of Bahrain Decree-Law No. 14/1996 now confers certain powers to the court where the proceedings involve expert evidence. The court is entitled to direct written questions to the expert to clarify any ambiguities and order the expert to correct any errors in the report. Additionally, the court may allow the parties to submit written questions to the expert and for the latter to respond within the period set by the court. Other powers of the court include ordering a joint discussion on the findings of the expert report and ordering the submission of a supplementary expert report.

8.1. Procedure for expert evidence

Article 135 of Bahrain Decree-Law No. 14/1996 now stipulates that the parties to the dispute may submit an expert report upon filing their statement of claim or during the proceedings.

In the event of an obstacle preventing the party-appointed expert from performing their mandate, the court shall issue a preliminary judgment/order authorising the expert to perform their mandate (article 136 of Bahrain Decree-Law No. 14/1996 (as amended)).

The expert shall hear the statements of the parties and shall submit their report within the time period specified by the court. The expert report should contain the technical opinion reached by the expert, the aspects on which the expert relied in preparing the report, a full statement of the expert’s biography and practical experience, and a statement of the expert’s neutrality and impartiality. Additionally, a copy of the model contract executed with the expert specifying their duties and scope of work for the proceedings shall accompany the expert report submitted to the court (article 138 of Bahrain Decree-Law No. 14/1996 (as amended)).

The expert’s report is not binding upon the court (article 142 of Bahrain Decree-Law No. 14/1996 (as amended)).

Privilege and disclosure of documents

The concept of privilege and disclosure are not expressly recognised by the Bahraini statute.

Notwithstanding the aforementioned, article 66 of Bahrain Decree-Law No. 14/1996 stipulates that a public sector employee may not testify in relation to information that was not disclosed through legal means during their employment, and which they are not authorised to disclose by the competent authority unless this has been requested by the court or one of the litigants involved in the proceeding. Additionally, article 67 of Bahrain Decree-Law No. 14/1996 recognises a similar concept to legal professional privilege, as it provides that lawyers, agents, physicians, auditors, or others may not disclose information that they have obtained during the course of their work unless the information revealed contains statements that are misdemeanour or felony in nature.

Moreover, there is no explicit duty in the Bahrain law to disclose documents. However, article 21 of Bahrain Decree-Law No. 14 /1996 provides that a party can be compelled to disclose documents in their possession if:

• The disclosure of such documents is allowed by law.
• The documents belong to both parties in the proceeding.
• If they are relied upon by the other party in the proceedings.

The obligation to disclose documents under the Bahrain law is different from the concept of disclosure of documents under the common law jurisdictions in terms of the scope of documents disclosed and the enforcement of the obligation to disclose, given that a party here is only compelled to disclose documents requested by the adverse party.

Related Content

• Bahrain Decree-Law No. 12/1971 On the Issuance of the Civil and Commercial Procedures Law
• Bahrain Decree-Law No. 14/1996 on the Issuance of the Law of Evidence in Civil and Commercial Matters
• Bahrain Decree-Law No. 28/2021 Amending Bahrain Decree-Law No. 14/1996 on the Issuance of the Law of Evidence in Civil and Commercial Matters
• Bahrain Decree-Law No. 54/2018 on the Issuance of the Electronic Communications and Transactions Law
• Bahrain Resolution No. 134/2021 Promulgating the Procedural Rules Governing the Resolution of Disputes Falling
  Under the Jurisdiction of the Bahrain Chamber for Dispute Resolution in accordance with Section 1 of Chapter 2 of Bahrain Decree-Law No. 30/2009 On Bahrain Chamber for the Settlement of Economic, Financial and Investment Disputes.

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