Kuwait Court of Cassation principle number 290

Summary: - Submission by the court registry of the case file to the judge or the presiding judge of the circuit, as the case may be. Its instances. When the sequence of hearings is interrupted—whether during consideration of the case or when it is reserved for judgment—by an occurrence obstructing the normal course of hearings, where it becomes apparent that a hearing or the date of judgment coincides with an official holiday, or proceedings are halted because of an incident affecting the litigation, necessitating the continuation of proceedings and notification of the parties of the new hearing. The purpose thereof. To set a new hearing for consideration of the case or delivery of judgment. The registry must notify the parties thereof by registered letter, without the need for service by a process server. An example of nullity of proceedings before the Court of Appeal affecting the judgment, owing to failure to notify the appellant of the administrative adjournment of consideration of the case and the adjourned hearing, to present his defence and submit the 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 case for more than three weeks on each occasion or adjourn it more than once for a single reason attributable to one of the parties. Pronouncement of the adjournment decision shall constitute notification to the parties of the new date, unless the sequential course of the aforesaid hearings is interrupted for any reason, in which event the registry must inform the parties of the new date by registered letter..."; and in Article 114/2, appearing in the chapter concerning the delivery of judgments, that: "Whenever the court fixes a hearing for pronouncement of judgment, it may not postpone delivery of judgment or reopen the case for argument except by a decision declared by the court at the hearing and recorded in its minutes. Pronouncement of that decision shall constitute notification to the parties of the new date, unless the sequential course of the aforesaid hearings is interrupted for any reason, in which event the registry must inform the parties of the new date by registered letter"—indicate that the legislature established a rule whereby, when the sequence of hearings is interrupted—whether during consideration of the case or when it is reserved for judgment—by an occurrence obstructing the normal course of hearings, where it becomes apparent that a hearing or the date of judgment coincides with an official holiday, or proceedings are halted because of an incident affecting the litigation, necessitating continuation of proceedings and notification of the parties 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 circuit, as the case may be, who fixes a new hearing for consideration of the case or delivery of judgment. The registry must notify the parties thereof, and, to facilitate matters, 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 as it is established from the appeal file and the hearing minutes that the Court of Appeal had fixed the hearing of 14/11/2012 to consider the appeal, and, when it became apparent that this date coincided with an official holiday, an endorsement was accordingly made on the appeal file administratively adjourning it to the hearing of 13/12/2012, but the first respondent submitted an application to bring the appeal forward, with an obligation upon him to serve notice on the parties, and the presiding judge of the circuit approved bringing it forward to the hearing of 21/11/2012; the papers contained nothing indicating service of notice thereof on the appellant, and the judgment recorded his attendance although he appeared neither in person nor through an agent, whereas the respondent appeared, as established by the minutes of that hearing; and the Court of Appeal proceeded to consider the case and decided to reserve it for judgment at the last hearing for argument; and as 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 the 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 any need to examine the remaining grounds of appeal.