Kuwait Court of Cassation principle number 278

Summary: - A claim on which no judgment terminating the litigation before the court is rendered. Costs may not be awarded in respect of it. Article 119, Law of Procedure. - An action to establish a state of affairs. How it ends. As soon as the court has completed the conservatory measure sought therein, by appointing an expert and his depositing his report establishing the state of affairs sought to be established. - The court’s ruling that the action has ended. Its implication. Bringing the action to its objective within the scope it encompasses according to the appellant’s request. This ruling is not considered an adjudication of a dispute. - The challenged judgment’s order that the appellant, in his capacity, pay the costs of the action and lawyers’ fees despite ruling that the action had ended as an action to establish a state of affairs involving no adjudication of a dispute. A defect requiring its partial cassation without cassation being followed by consideration of the appeal. Reason therefor. Rule: It is established in the jurisprudence of this Court that the provision in Article 119 of the Law of Procedure that “The court must, when rendering the judgment terminating the litigation before it, rule of its own motion on the costs of the action, and these, including lawyers’ fees, shall be awarded against the unsuccessful litigant ......” means that a claim on which no judgment terminating the litigation before the court is rendered 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 completes the conservatory measure sought therein, by appointing an expert and his depositing his report establishing the state of affairs sought to be established, and that the court’s ruling that the action has ended, although bringing it to its objective within the scope it encompasses according to the appellant’s request, does not constitute adjudication of a dispute. That being so, and since the challenged judgment confined itself to ruling that the action had ended as an action to establish a state of affairs involving no adjudication of a dispute, yet ordered the appellant, in his capacity, to pay the costs of the action and lawyers’ fees, it is defective, requiring its partial cassation in this respect, without cassation being followed by consideration of the appeal, since the Court has conclusively resolved the dispute by deciding the legal issues raised in the cassation appeal, leaving no other factual or legal issues requiring determination.