10 May 2020

Hadef in the Courts: Emails as conclusive evidence

Authored by: Mutasim Khalil Ismail and Hiba Mahmud

The Abu Dhabi Court of First Instance issued a decision in favour of our client, a leading UAE bank (the Bank), in a claim for a substantial amount in which the Court held that pursuant to Federal Law No. 1 of 2006 relating to Electronic Transactions, E-Commerce and Electronic Communications (the E-Commerce Law) emails may be submitted as conclusive evidence of what was agreed between the parties.
 

Background and Judgment

A brokerage company (the Broker) alleged that the Bank had without its authorisation or instruction transferred a substantial amount of its funds held in a bank account with the Bank to a foreign bank account belonging to a third party. The Bank’s position was that it had carried out the transfer on the basis of instructions it received from the Broker via email to that effect. The Broker however contended that the email being relied upon by the Bank was not sent by it but was fraudulent. Moreover, that the contract entered into between the Bank and Broker required that any instructions from the Broker for the transfer of money to be given not solely by email, but rather to first be given by the Broker to the Bank in a written letter containing the Broker’s company stamp and for the letter to be followed by confirmation from the Broker via email or telephone. 

The matter was referred to a court-appointed expert to determine whether the mode in which the instructions were received by the Bank were in accordance with the parties contract and whether an email containing the instruction was in fact sent by the Broker.

On behalf of our client, we argued that pursuant to the E-Commerce Law, emails have evidentiary value. Moreover, the fact that the email is adduced in copy form and may not be adduced in an original form, does not preclude it from being submitted as evidence, provided that the email is the best evidence reasonable expected to be obtained by the person relying on it. Further, we proved that the contract entered into between the parties provided for instructions from the Broker to the Bank to be sent via email and that this was in fact the mode of transacting between the parties in all previous transfers. We also proved that the email in question was in fact sent to the Bank by the Broker - proving that the email was sent by the Broker involved the submission of complex technical data from IT experts and verification from Microsoft of the sender’s identity and location.

The court-appointed expert and, in turn, the Court agreed with our submissions and rightly dismissed the Broker’s claim against the Bank.
 

Legal Significance

The judgment of the Court of First Instance is subject to appeal and it remains to be seen whether the higher courts will come to the same conclusion.  

Nonetheless, with this Judgment, parties are reminded of the evidentiary value of emails under UAE law. No doubt with the effects of Covid-19 changing how and where people do their work, with many working remotely from home, email transactions are becoming even more common-place.

 
 

This article, including any advice, commentary or recommendation herein, is provided on a complimentary basis without consideration of any specific objectives, circumstances or facts. It reflects the views of the writer which may, in some cases, differ from those of the firm, especially in the developing jurisdiction of the UAE.