Kuwait Court of Cassation principle number 194

Summary: - The person against whom enforcement is directed must be the judgment debtor. Verification of the identity of the person against whom enforcement is sought. It falls upon the enforcement applicant. The injured person’s entitlement to compensation for the harm suffered by the person subjected to enforcement where it is established that he is not the judgment debtor, provided that the elements of liability are present. The reason: enforcement proceedings are judicial proceedings falling within abuse of the right to litigate. - The appellant’s reliance before the court of merits on a material defence to the effect that the element of fault giving rise to liability on the part of the first respondent in his capacity was present, because he had no right to enforce against the appellant’s assets and requested their attachment although the settlement agreement did not permit him to do so. The challenged judgment’s failure to answer it with specific reasons, merely stating that the first respondent exercised his legitimate right to attach the appellant’s property and balances after he had—from his perspective—grounds justifying attachment, without his conduct being characterized by recklessness, haste, or lack of precaution, and taking the Enforcement Department’s approval of attachment as evidence thereof, in a manner that did not address the appellant’s defence. A defect requiring its cassation. The reason for this. An example of compensation to the appellant for moral harm resulting from an execution attachment wrongfully imposed on his assets, conclusively establishing the element of fault giving rise to liability for contravening the absence of indebtedness stipulated in the settlement agreement forming the basis of the attachment. Rule: It is established—in the jurisprudence of this Court—that whenever the parties raise a material defence that may change the outcome of the action, the court must answer it with specific reasons; otherwise, its judgment is tainted by an invalidating deficiency. The law has also laid down several controls on enforcement, including that the person against whom enforcement is directed must be the judgment debtor. The enforcement applicant bears the burden of verifying the identity of the person against whom enforcement is sought; otherwise, compensation is required for the injured person for the harm suffered by the person subjected to enforcement if it transpires that he is not the judgment debtor, whenever the elements of liability are present. Enforcement proceedings are judicial proceedings falling within abuse of the right to litigate. That being so, it is established from the case papers—and as maintained in the appellant’s defence before the court of merits—that the element of fault giving rise to liability on the part of the first respondent in his capacity was present, because he had no right to enforce against the appellant’s assets and requested their attachment, as the settlement agreement dated 14/6/1988 did not permit him to do so. However, the challenged judgment did not answer this material defence with specific reasons, confining itself—in rejecting it—to stating that the first respondent exercised his legitimate right to attach the appellant’s property and balances after he had—from his perspective—grounds justifying attachment, without his conduct being characterized by recklessness, haste, or lack of precaution. It took the Enforcement Department’s approval of attachment as evidence thereof. This conclusion reached by the judgment, on which it based its ruling setting aside the appealed judgment and dismissing the action, does not address what the appellant maintained in his aforementioned defence, is not a proper answer to it, and does not in itself lead to the conclusion reached, rendering it defective and requiring its cassation. - Whereas, as to the merits of Civil Appeal 4154 of 2012—which is ready for determination—and for the foregoing reasons, it is established from the case papers that the appellant in his capacity had no right to enforce against the appellee’s assets, because this contravened the settlement agreement forming the basis of the attachment, which stipulated that the appellee was not indebted to the appellant—the enforcement applicant. This conclusively establishes the element of fault giving rise to liability on the part of the latter. Since the appealed judgment ordered the appellant to pay the appellee the sum of five thousand dinars as final compensation for the moral harm he sustained as a result of the appellant’s fault, it must be upheld on account of the correctness of the reasons on which it was based.