Kuwait Court of Cassation principle number 203

Summary: - The binding authority of a judgment. Its basis. Matters not actually examined by the court. They do not acquire the force of res judicata. - Bringing the first-instance action to claim compensation for the harm suffered by the litigant as a result of publication. The first-instance judgment dismissing it for absence of the element of fault. The challenged judgment awarding compensation for moral damage only and ruling that the claim for material compensation could not be heard because it had previously been adjudicated by dismissal in the aforementioned action, although the litigants had not debated it and its truth had not been settled. A violation of the law and an error in its application requiring cassation. Rule: It is established in the jurisprudence of this Court that the binding authority of a judgment extends only to what it has decided between the litigants, expressly or implicitly, whether in the operative part or in the grounds without which the operative part cannot stand, after the parties have debated what was decided and its truth has been settled by the judgment conclusively and exhaustively. Accordingly, what the court has not actually examined cannot be the subject of a judgment acquiring the force of res judicata. That being so, and it being apparent that the appellant brought against the 2 respondents Action No. ..... of 2009, Civil, seeking a judgment ordering them jointly and severally to pay him 5001 dinars as provisional compensation for the damage he suffered as a result of publication of the article that is the subject of the present action, the court dismissed the action on the ground that the element of fault was absent on the part of the 2 respondents. The appellant appealed that judgment by Appeal No. 3022 of 2010, Civil. The Court of Appeal set aside the first-instance judgment, granted the appellant's claims, and ordered the 2 respondents jointly and severally to pay 5001 dinars as provisional compensation for the moral damage he suffered. It did not address the material damage suffered by the appellant or examine it, nor did the litigants debate it expressly or implicitly, and its truth was not settled between them. Consequently, that judgment has no binding authority concerning compensation for that material damage and does not preclude the appellant from claiming compensation for that damage. Since the challenged judgment departed from this view and ruled that this claim could not be heard because it had previously been adjudicated by dismissal in the action mentioned above, it violated the law and erred in its application, requiring its cassation.