Kuwait Court of Cassation principle number 214

Summary: - Conflict between the conclusion reached by the expert in his report and another report and a material defence raised by one of the parties, who substantiated its validity with documents he submitted. The court must scrutinize this defence in light of the significance of those documents. Failure to do so. Its consequence: an invalidating deficiency permitting an appeal against it. The challenged judgment’s contravention of this and its ruling that an appeal against this judgment was inadmissible because the amount fell below the appeal threshold. An error in applying the law and a contradiction of what is established in the case papers, requiring its cassation. Rule: It is established—in the jurisprudence of this Court—that the purport of Article 138 of the Civil and Commercial Procedure Law is that, as a general rule, judgments issued with final effect by courts of first instance are not appealable except on account of nullity in the judgment or nullity in the proceedings that affected the judgment...., and that the defect of contradicting what is established in the case papers arises when the judge of merits disregards facts established by the evidence presented to him. If he bases his judgment on an understanding contrary to what is established in the case papers, his judgment is void. Where the conclusion reached by the expert in his report conflicts with a material defence raised by one of the parties, who substantiated its validity with documents he submitted, the court must then scrutinize that defence in light of the significance of those documents; otherwise, its judgment is tainted by an invalidating deficiency. That being so, it is established from the case papers and the photocopies submitted by the appellant company of the respondent’s employment contract and the leave application submitted by him and bearing his signature—which were not disputed—that his employment with the company began on 31/3/1997, and that he received his salary for 9/2009, as established by the bank statement, and part of the payment for his accrued leave. Since the expert appointed in the action disregarded those documents and constructed his report contrary to them, and the court of first instance based its judgment on that report rather than the second expert’s report, which took account of their significance, and the judgment also disregarded the documents submitted by the respondent company establishing that the respondent had received part of the payment for his accrued leave, it was tainted by an invalidating deficiency permitting an appeal against it. Since the challenged judgment ruled that the appeal was inadmissible because the amount fell below the appeal threshold, it erred in applying the law and contradicted what is established in the case papers, requiring its cassation.