Kuwait Court of Cassation principle number 233

Summary: - Urgent judgments. The general rule is that they have no res judicata effect before the court of merits. Reason. They are issued by way of interim measures based on what appears on the face of the papers. - The court of merits. It may not be required to adopt the grounds on which a judgment in an urgent matter was based, even if it examined the substance of the right. Reason. Its consideration of that substance in such a case is not to determine it by a judgment conclusively resolving the dispute, but to seek the correct course concerning the interim measure requested. For that purpose, the judge may discern, to the extent required by the urgent application, the apparent significance of the documents submitted and what a summary examination reveals of the substance of the right to which they attest. His assessment in that regard is provisional and does not affect the substance of the disputed right, which remains preserved intact for the interested parties to contest before the court of merits. - The Court of Urgent Matters’ dismissal of an earlier action by the appellant seeking disregard of the attachment levied on the property forming the subject matter of the action, on the basis of what it discerned and within the limits required by a summary examination of that application. Implication. That urgent judgment has no res judicata effect, and the court of merits is not bound by it in the subsequent action—the action on the merits—brought by the appellant seeking the execution attachment levied on the property, its treatment as never having existed, and the extinguishment of all its ensuing effects. Reason. The challenged judgment’s departure from this view and its conclusion that that judgment has res judicata effect which must be observed in the present action and adjudication made accordingly, and its consequent ruling that the action could not be heard because it had previously been adjudicated by that judgment. A defect requiring its cassation. Rule: It is established in this Court’s jurisprudence that the general rule concerning urgent judgments is that they have no res judicata effect before the court of merits, since they are issued by way of interim measures based on what appears on the face of the papers. The court of merits is therefore not bound to adopt the grounds on which a judgment in an urgent matter was based, even if it examined the substance of the right. This is because its consideration of that substance in such a case is not to determine it by a judgment conclusively resolving the dispute, but to seek the correct course concerning the interim measure requested. In doing so, the judge discerns, to the extent required by the urgent application, the apparent significance of the documents submitted and what a summary examination reveals of the substance of the right to which they attest. His assessment in that regard is provisional and does not affect the substance of the disputed right, which remains preserved intact for the interested parties to contest before the court of merits. Accordingly, since it is established that the appellant brought urgent action No. 2746 of 2009 seeking disregard of the attachment levied on the property forming the subject matter of the action, and the Court of Urgent Matters discerned, within the limits required by a summary examination of that application, that the case papers contained nothing supporting the appellant’s application and therefore dismissed it, that urgent judgment consequently has no res judicata effect in the subsequent action—the action on the merits—which the appellant brought seeking invalidation of the execution attachment levied on the property, its treatment as never having existed, and the extinguishment of all its ensuing effects. The court of merits is not bound by that judgment, since the Court of Urgent Matters did not determine the merits but sought the correct course in the grounds the appellant advanced for his action, to the extent required by the interim measure it was requested to take. To say otherwise would pre-empt the authority of the judge of the merits when hearing the substantive action. Since the challenged judgment departed from this view and concluded that that judgment had res judicata effect entailing adherence to it in the present action and adjudication accordingly, and consequently ruled that the action could not be heard because it had previously been adjudicated by that judgment, it is defective in a manner requiring its cassation.