Kuwait Court of Cassation principle number 12

Summary: - Notifying the litigants by registered letter of receipt of the expert's report and the hearing scheduled for consideration of the case. The responsibility of the Registry, not the expert. The effect of this notification is the termination of the litigants' exemption from attending hearings before the court while the expert carries out the assignment. Completion of notification. Its implication. Their obligation to attend hearings. Non-attendance. Its effect. Striking out the case or adjudicating in their absence. - The papers contain nothing indicating that the litigants were notified of receipt of the report, and they did not attend the hearing scheduled for consideration of the case. Effect thereof: failure to notify is deemed a cause preventing the succession of hearings from operating against the litigant, precluding the striking out of the case and deeming it as never having been brought as a sanction therefor. The appealed judgment's departure from this and its ruling deeming the case as never having been brought as a sanction for non-attendance. An error in applying the law requiring its cassation. Rule: The provision in Article 14 of the Law Regulating Expertise promulgated by Decree-Law No. 40 of 1980 that "... The Registry shall notify the litigants by registered letter of the filing of the report and of the date of the hearing scheduled for consideration of the case" indicates—as explained in the Explanatory Memorandum—that the law placed upon the Registry—not the expert—the task of notifying the litigants by registered letter of the expert's filing of the report and of the date of the hearing scheduled for consideration of the case before the court, particularly after this notification acquired a newly introduced special importance in exempting litigants from the burden of attending hearings before the court while the expert carries out the assignment. This exemption expires upon the aforementioned notification, since, after such notification, litigants must regularly attend the court's hearings if they wish to avoid a judgment striking out the case or a judgment on its merits in their absence if it is ready for such adjudication. That being so, and it being established from the papers that the Court of First Instance appointed an expert in the case, and when the expert filed his report the court decided to adjourn consideration of the case to the hearing of 19/2/2013 to notify the plaintiff of receipt of the report, and at that hearing the plaintiffs did not attend, the court decided to reserve the case for judgment and ruled that the case be deemed as never having been brought as a sanction for non-attendance. The case papers contain nothing indicating that the appellants were notified of receipt of the report. Furthermore, the notification of receipt of the report dated 20/1/2013 attached to the papers was not executed either through the process server or by registered mail. Consequently, the appellants were not notified of the filing of the report and of the date of the hearing scheduled for consideration of the case pursuant to the Law Regulating Expertise. This constitutes a cause preventing the succession of hearings from operating against them, with the result that the case may not be struck out for non-attendance before notification of receipt of the report. Since the first-instance judgment, upheld by the appealed judgment, ruled that the case be deemed as never having been brought as a sanction for the appellants' failure to attend the hearing of 19/2/2013, notwithstanding that they had not been notified of receipt of the expert's report and of the scheduled hearing, it is vitiated by an error in applying the law requiring its cassation on this ground, without any need to examine the remaining grounds of appeal.