Procedural vs Substantive Defences Under Kuwaiti Law

What Are Procedural Defences?

Procedural defences concern the procedural aspects of a case. They do not address the substance of the dispute or the right claimed, but instead focus on a defect in the procedures followed by the opposing party. Their primary purpose is to stay the proceedings, have them declared void, or have the claim declared inadmissible because a procedural defect has prevented the necessary legal requirements from being met.

Examples include objections to the court’s territorial or subject-matter jurisdiction, a plea that the originating statement of claim is invalid, or a plea that the right to take a particular procedural step has lapsed. These defences must be raised at the outset of the proceedings, as failure to invoke them within the prescribed time may result in the loss of the right to do so. This is a strict procedural requirement that should be reviewed with a specialist lawyer.

The Essence of Substantive Defences

Unlike procedural defences, substantive defences directly address the underlying right claimed in the case. They seek to negate the obligation or right asserted by the opposing party by presenting evidence that disproves the alleged facts, establishes that the right has been extinguished, or shows that it never arose in the first place.

Substantive defences are used to challenge the validity of the opposing party’s documents, rebut witness testimony, or submit documentary evidence to the contrary. For example, in a claim for payment, a plea that the debt has been paid or otherwise extinguished is a substantive defence. This type of defence may be raised at any stage of litigation until the court closes the proceedings to further submissions.

The Importance of the Order in Which Defences Are Raised

The order in which defences are raised is crucial: a procedural defence is usually raised before addressing the merits. If the court upholds the procedural defence, the case may end without any need to examine its merits. Defence strategy therefore always begins with reviewing the procedures before examining financial or property claims.

This sequence requires considerable care from litigants, as mixing defences or delaying a procedural defence may legally be interpreted as a waiver of the right to invoke it. We therefore consistently emphasise the need to prepare legal submissions under specialist supervision to ensure that procedural opportunities are not lost.

How Can We Help Prepare Your Defence?

Our firm assists in analysing your case and identifying the types of defence best suited to your legal position. Drawing on a precise understanding of Kuwaiti legal provisions, we prepare coherent, structured defence submissions that ensure your position is clearly presented to the court.

Whether your dispute is commercial or civil, we analyse all documents and case files to ensure that procedural or substantive defences are raised at the appropriate time, enhancing your prospects of protecting your legal rights before the judicial authorities.

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