PART 14 PART 14 — Evidence
92. Power of the Court to control evidence(1) The Court may control evidence by giving directions as to the issues on which it requires evidence, the nature of the evidence which it requires to decide those issues and the way in which the evidence is to be placed before the Court.(2) The Court may use its power under this Rule to exclude evidence that would otherwise be admissible.(3) The Court may limit cross-examination.
93. Evidence of witnesses(1) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved at trial by their oral evidence given in public; and at any other hearing, by their evidence in writing in the form of a witness statement under Rule 94 or an affidavit under Rule 104, as applicable.(2) This Rule is subject to any provision to the contrary contained in these Rules or elsewhere and to any order of the Court.(3) The Court may give directions identifying or limiting the issues to which factual evidence may be directed, identifying the witnesses who may be called or whose evidence may be read and limiting the length or format of witness statements.(4) The Court may allow a witness to give evidence through a video link or by other means.
94. Witness statements(1) The Court will order a party to serve on the other parties any witness statement of the oral evidence which the party serving the statement intends to rely on in relation to any issues of fact to be decided at the trial.(2) If a party has served a witness statement and he wishes to rely at trial on the evidence of the witness who made the statement, he must call the witness to give oral evidence unless the Court orders otherwise or he puts the statement in as hearsay evidence.(3) Where a witness is called to give oral evidence under paragraph (1), his witness statement shall stand as his evidence in chief unless the Court orders otherwise.
95. Evidence in proceedings other than at trial(1) Subject to paragraph (2), the general rule is that evidence at hearings other than the trial is by witness statement unless the Court, a practice direction or any other ADGM enactment requires otherwise.(2) At hearings other than the trial, a party may rely on the matters set out in his statement of case or his application notice if the statement of case or application notice is verified by a statement of truth.
96. Order for cross-examination(1) Where, at a hearing other than the trial, evidence is given in writing, any party may apply to the Court for permission to cross-examine the person giving the evidence.(2) If the Court gives permission under paragraph (1) but the person in question does not attend as required by the order, his evidence may not be used without the Court's permission.
97. Witness statements, exhibits and witness summaries(1) A witness statement must comply with the requirements as to form set out in any relevant practice direction.(2) Any alteration to a witness statement must be initialled by the person making the statement or by the authorised person where appropriate.(3) A witness statement which contains an alteration that has not been initialled may be used in evidence only with the Court's permission.(4) An exhibit used in conjunction with a witness statement should be verified and identified by the witness and remain separate from the witness statement.(5) Where a witness statement or an exhibit to a witness statement does not comply with this Part or the provisions of the relevant practice direction in relation to its form, the Court may refuse to admit it as evidence and may refuse to allow the costs arising from its preparation.
98. Filing of witness statements and exhibits(1) Unless the Court directs otherwise, a party must file a witness statement.(2) Where a party wishes to file a witness statement in a language other than English, or the Court has directed that a witness statement in a language other than English is to be filed, the party wishing to rely on it must have it translated into English and file the witness statement in its original language and a certified English translation with the Court.
Amended on July 9 2020
99. Witness summaries(1) A party who is required to serve a witness statement for use at trial but is unable to obtain one may apply, without notice, for permission to serve a witness summary instead.(2) A witness summary is a summary of the evidence, if known, which would otherwise be included in a witness statement; or, if the evidence is not known, the matters about which the party serving the witness summary proposes to question the witness.(3) Unless the Court orders otherwise, a witness summary must be served within the period in which a witness statement would have had to be served.
100. Consequences of failure to file or serve a witness statement or witness summary(1) If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the Court, then the witness may not be called to give oral evidence unless the Court gives permission.(2) If a witness statement for use in proceedings other than at trial is not filed in respect of an intended witness within the time specified by the Court, these Rules, a relevant practice direction or any relevant ADGM enactment, the witness statement may not be admitted as evidence (including hearsay evidence) or referred to any hearing without the Court's permission, and the Court may refuse to admit is as evidence until such time as it is served on the other parties to the proceedings.
101. Cross-examination on a witness statement
Where a witness is called to give evidence at trial, he may be cross-examined on his witness statement whether or not the statement or any part of it was referred to during the witness's evidence in chief.
102. Use of witness statements for other purposes(1) Except as provided by this Rule, a witness statement may be used only for the purpose of the proceedings in which it is served.(2) Paragraph (1) does not apply, if and to the extent that the witness gives his written consent to some other use of his witness statement, the Court gives permission for some other use or the statement has been put into evidence at a public hearing.
103. Availability of witness statements for inspection(1) A witness statement which stands as evidence in chief is open to inspection during the course of proceedings unless the Court orders otherwise.(2) Any person may ask for a direction that a witness statement is not open to inspection, but the Court will not make such a direction unless it is satisfied that a witness statement should not be open to inspection because of the interests of justice, the public interest, the nature of any expert evidence in the statement or the nature of any confidential information in it (including information relating to personal financial matters).(3) The Court may exclude from inspection words or passages in the statement.
104. Affidavit evidence(1) Evidence must be given by affidavit instead of, or in addition to, a witness statement if this is required by the Court, a provision contained in any other rule, a practice direction or any other ADGM enactment.(2) An affidavit must comply with the requirements as to the form set out in the relevant practice direction.(3) An affidavit may, with the leave of the Court, be used subject to any direction the Court may make in accordance with the rules of evidence despite any irregularity in form.(4) An affidavit must include a statement which verifies the identity of the deponent and be signed by the person before whom it was sworn or affirmed.(5) Any alteration to an affidavit must be initialled by both the deponent and the person before whom the affidavit was sworn or affirmed.(6) Rules 97 and 98 apply to affidavits and exhibits to affidavits as they do to witness statements and exhibits to witness statements.
Amended on July 9 2020 Amended on June 1, 2017
105. Who may take affidavitsOnly the following may take affidavits –(a) a public notary in accordance with section 221 of the Regulations;(b) subject to paragraph (2) –(i) a Judge of the Court;(ii) the Registrar;(iii) a lawyer;(iv) a Court officer appointed by the Registrar for that purpose; and(c) any person who may take an affidavit in accordance with Rule 107.
Amended on July 9 2020
106. Filing of affidavits
If an affidavit is in a language other than English, the party wishing to rely on it must have it translated into English and must file the affidavit in its original language and a certified translation with the Court.
Amended on July 9 2020
107. Affidavit made outside the jurisdiction
A person may make an affidavit outside the jurisdiction in accordance with this Part before a person who may take an affidavit under the law of the place where he makes the affidavit.
108. Circumstances where affidavit required(1) Affidavits must be used as evidence where sworn or affirmed evidence is required by an order, or a rule, practice direction or other ADGM enactment.(2) Affidavits must also be used in any application for a search order, a freezing injunction; an order requiring an occupier to permit another to enter his real property; or a declaration and/or order for a fine for contempt of Court.(3) If a party believes that sworn or affirmed evidence is required by a Court in another jurisdiction for any purpose connected with the proceedings, he may apply to the Court for a direction that evidence shall be given only by affidavit on any pre-trial applications.(4) The Court may give a direction under paragraph (1) that evidence shall be given by affidavit instead of or in addition to a witness statement or statement of case on its own initiative; or after any party has applied to the Court for such a direction.
Amended on July 9 2020
109. Notice to admit facts(1) A party may serve notice on another party requiring him to admit the facts, or the part of the case of the serving party, specified in the notice.(2) Where the other party makes any admission in response to the notice, the admission may be used against him only in the proceedings in which the notice to admit is served and by the party who served the notice.(3) The Court may allow a party to amend or withdraw any admission made by him on such terms as it thinks just.
110. Notice to admit or produce documents(1) A party shall be deemed to admit the authenticity of a document disclosed to him under Rule 109 unless he serves notice that he wishes the document to be proved at trial.(2) A notice to prove a document must be served by the latest date for serving witness statements or within 7 days of disclosure of the document, whichever is the later.
111. Notarial acts and instruments
A notarial act or instrument may be received in evidence without further proof as duly authenticated in accordance with the requirements of law unless the contrary is proved.
112. Notice of intention to rely on hearsay evidence(1) Where a party intends to rely on hearsay evidence at trial and either that evidence is to be given by a witness giving oral evidence or that evidence is contained in a witness statement of a person who is not being called to give oral evidence, that party complies with section 56 of the Regulations by serving a witness statement on the other parties in accordance with the Court's order.(2) Where the witness is not being called to give oral evidence, the party intending to rely on the hearsay evidence must, when he serves the witness statement inform the other parties that the witness is not being called and give the reason why that is so.(3) In all other cases, where a party intends to rely on hearsay evidence at trial, that party complies with section 56 of the Regulations by serving a notice on the other parties in accordance with the relevant practice direction; and which identifies the hearsay evidence, states that the party serving the notice proposes to rely on the hearsay evidence at trial; and gives the reason why the witness will not be called.
113. When notice of intention to rely on hearsay evidence is not required
Section 56 of the Regulations does not apply to evidence at hearings other than trials, to an affidavit or witness statement which is to be used at trial but which does not contain hearsay evidence or where the requirement is excluded by a practice direction.
114. Power to call witness for cross-examination on hearsay evidence
Where a party proposes to rely on hearsay evidence and does not propose to call the person who made the original statement to give oral evidence, the Court may, on the application of any other party in accordance with the relevant practice direction, permit that party to call the maker of the statement to be cross-examined on the contents of the statement.
Where a party proposes to rely on hearsay evidence but does not propose to call the person who made the original statement to give oral evidence and another party wishes to call evidence to attack the credibility of the person who made the statement, the party who so wishes must give notice of his intention in accordance with the relevant practice direction to the party who proposes to give the hearsay statement in evidence.
116. Use of plans, photographs and models as evidence(1) This Rule applies to evidence which is not contained in a witness statement, affidavit or expert's report, is to be given orally at trial and is evidence of which prior notice must be given under rule 112(3).(2) It applies also to documents which may be received in evidence without further proof under section 65 of the Regulations.(3) Unless the Court orders otherwise, the evidence shall not be receivable at trial unless the party intending to put it in evidence has given notice to the other parties in accordance with the relevant practice direction.(4) Where a party has given notice that he intends to put in evidence under this Rule, he must give every other party an opportunity to inspect it and to agree to its admission without further proof.
Amended on June 1, 2017
117. Evidence of finding on question of foreign law(1) This Rule sets out the procedure which must be followed by a party who intends to put in evidence a finding on a question of foreign law by virtue of section 73 of the Regulations.(2) That party must give any other party notice of his intention in accordance with the relevant practice direction, and the notice must specify the question on which the finding was made and enclose a copy of a document where it is reported or recorded.
118. Evidence of consent of trustee to act
A document purporting to contain the written consent of a person to act as trustee and to bear his signature verified by some other person is evidence of such consent.