Kuwait Court of Cassation principle number 246

Summary: - A claim in respect of which no judgment terminating the litigation before the court is issued. Costs may not be awarded in respect thereof. Article 119 of the Code of Procedure. - An action to establish a state of affairs. How it ends: as soon as the court has completed the preservative measure requested therein, by appointing an expert and the expert’s depositing his report establishing the state of affairs sought to be established. - The court’s ruling that the action has ended. Its implication: it has brought the action to its intended objective within the scope it accommodates according to the appellant’s request. That ruling is not regarded as determining a dispute. - The contested judgment’s ordering the appellant, in his capacity, to pay the costs of the action and attorney’s fees, despite ruling that the action had ended as an action to establish a state of affairs that did not involve determining a dispute. A defect requiring its partial cassation, without cassation being followed by consideration of the appeal. The reason therefor. Rule: It is established in the jurisprudence of this Court that the provision of Article 119 of the Code of Procedure that: “When issuing the judgment terminating the litigation before it, the court must, of its own motion, rule on the costs of the action, and they shall be awarded, including attorney’s fees, against the unsuccessful party ......” means that a claim in respect of which no judgment terminating the litigation before the court is issued cannot properly be the subject of an award of costs. It is also established that an action to establish a state of affairs ends as soon as the court has completed the preservative measure requested therein, by appointing an expert and the expert’s depositing his report establishing the state of affairs sought to be established. Although the court’s ruling that the action has ended brings it to its intended objective within the scope it accommodates according to the appellant’s request, that ruling does not constitute determination of a dispute. That being so, the contested judgment stopped at ruling that the action had ended as an action to establish a state of affairs that did not involve determining a dispute, yet nevertheless ordered the appellant, in his capacity, to pay the costs of the action and attorney’s fees. It is therefore defective, requiring its partial cassation in this respect, without cassation being followed by consideration of the appeal, after the Court has determined the legal issues raised in the cassation appeal in a manner conclusively resolving the dispute, leaving no other factual or legal issues requiring determination.