Kuwait Court of Cassation principle number 279

Summary: - There is no adjudication except in a dispute, and no dispute without an action brought by a claimant who specifies his claims therein. Article 45 of the Code of Procedure. Its implication: the judgment must adhere to what the parties request. This is a matter arising from the nature of adjudication as recourse to judgment between litigants over a disputed right. The court’s departure from that scope. Its effect: fundamental nullity of the judgment. Its relation to public policy. - Determining the claims in an action. What matters is the relief requested in an explicit, unequivocal manner brought to the court’s attention. Matters referred to in the statement of claim or defence memorandum without a request for judgment thereon are not included. - The respondent’s request for judgment appointing a forensic physician to examine him, establish the nature of his illness, and determine the degree of disability and his ability to bear the burdens of work, in preparation for claiming whatever that report may disclose, together with an order requiring the appellant Bank to produce the original of his loan agreement and the loan insurance policy. An action to prepare evidence for use as the basis of a second action seeking substantive relief. Its effect: the contested judgment must stop at ruling that the action has ended. Its granting the claims and ordering the appellant to return a proportion of the deducted instalments paid towards the loan. Its effect: fundamental nullity of the judgment relating to public policy. Rule: It is established in the jurisprudence of this Court that there is no adjudication except in a dispute, and no dispute without an action brought by a claimant who specifies his claims therein, as provided by Article 45 of the Code of Procedure. For that reason, the judgment’s adherence to what the parties request arises from the nature of the judicial function as recourse to judgment between litigants over a disputed right. If the court departs from that scope, its judgment has no object and is thereby fundamentally void, and thus contrary to public policy in a manner taking precedence over all other forms of error in the judgment falling within the dispute presented to the court. What matters in determining the claims is the relief requested in an explicit, unequivocal manner brought to the court’s attention. Thus, matters referred to in the statement of claim or defence memorandum without requesting the court to rule upon them are not included. That being so, it is established from the originating and appellate pleadings and all the papers that the first respondent requested, at their conclusion, a judgment appointing a forensic physician to examine him and establish the nature, history, and cause of his illness, the surgical operations he had undergone, whether they had left him with a degree of disability, whether it was total or partial, and the extent of their effect on his health and his ability to bear the burdens of work, in preparation for claiming whatever the expert’s report might disclose, together with an order requiring the appellant Bank to produce the original of his loan agreement and the loan insurance policy. He persisted in this request without seeking judgment for any substantive relief, and this remained the position until the close of pleadings. Accordingly, this action is one to prepare evidence for use as the basis of a second action whose subject matter would be defined by entitlement to insurance coverage. The contested judgment should therefore have stopped at ruling that the action had ended, since there were no substantive claims defining the dispute. Accordingly, the court had no jurisdiction beyond the first respondent’s request to appoint a forensic physician, and its aforementioned ruling had no object and is fundamentally void in a manner relating to public policy, requiring its cassation without any need to examine the remaining grounds of the cassation appeal.