Kuwait Court of Cassation principle number 265

Summary: - Submission by the court registry of the case file to the judge or the presiding judge of the chamber, as appropriate. Its instances. When the sequence of hearings is interrupted—whether during consideration of the action or when it is reserved for judgment—by an occurrence obstructing the ordinary course of hearings, where it becomes apparent that a hearing or the judgment date coincides with an official holiday, or proceedings stop because of a procedural impediment to the litigation, necessitating continuation of the proceedings and informing the litigants of the new hearing. Its purpose. To set a new hearing for consideration of the action or delivery of judgment. The registry must notify the litigants thereof by registered letter, without the need for service by a process server. An example of nullity in proceedings before the Court of Appeal affecting the judgment owing to failure to notify the appellant of the administrative adjournment of consideration of the action and the adjourned hearing, to enable him to present his defence and submit documents substantiating it, in fulfilment of the adversarial principle. Rule: The provision in Article 72 of the Civil and Commercial Procedure Law that “Except in cases of necessity, the court may not adjourn the action for more than three weeks at a time or adjourn it more than once for a single reason attributable to one of the litigants. Pronouncement of the adjournment decision constitutes notification to the litigants of the new date, unless the sequential course of the said hearings is interrupted for any reason, in which case the registry must inform the litigants of the new date by registered letter...” and in Article 114/2, contained in the chapter on delivery of judgments, that “Whenever the court sets a hearing for pronouncement of judgment, it may not postpone delivery of judgment or reopen the case for pleadings except by a decision declared by the court at the hearing and entered in its minutes. Pronouncement of this decision constitutes notification to the litigants of the new date, unless the sequential course of the said hearings is interrupted for any reason, in which case the registry must inform the litigants of the new date by registered letter,” indicate that the legislature established a rule to the effect that, when the sequence of hearings is interrupted—whether during consideration of the action or when it is reserved for judgment—by an occurrence obstructing the ordinary course of hearings, where it becomes apparent that a hearing or the judgment date coincides with an official holiday, or proceedings stop because of a procedural impediment to the litigation, necessitating continuation of the proceedings and informing the litigants of the new hearing, the registry then, as stated in the Explanatory Memorandum commenting on the two provisions, submits the case file to the judge or the presiding judge of the chamber, as appropriate, who sets a new hearing for consideration of the action or delivery of judgment. The registry must notify the litigants thereof, and, to facilitate the matter, it was considered sufficient for such notification to be made by registered letter without the need for service by a process server. That being so, and since it is established from the appeal file and hearing minutes that the Court of Appeal had set the hearing of 14/11/2012 for consideration of the appeal, and, when it became apparent that this date coincided with an official holiday, the appeal file was accordingly endorsed with an administrative adjournment to the hearing of 13/12/2012, but the first respondent submitted an application to bring forward the appeal, with an obligation upon him to serve the litigants, and the presiding judge of the chamber approved bringing it forward to the hearing of 21/11/2012, and the papers contained nothing indicating service upon the appellant thereof, and the judgment recorded his attendance although he appeared neither in person nor through a representative, while the respondent appeared as established in the minutes of that hearing, and the Court of Appeal proceeded to consider the action and decided at the final pleadings hearing to reserve it for judgment; and since it is established from the papers that the appellant was not informed of the new hearing to enable him to present his defence and submit documents substantiating it, in fulfilment of the adversarial principle, the proceedings before the Court of Appeal were tainted by nullity affecting the judgment, rendering it defective and requiring its cassation, without the need to examine the remaining grounds of the cassation appeal.