Kuwait Court of Cassation principle number 293

Summary: - An incidental claim. Condition for its admissibility: its close connection with the original claim. It must be submitted during pending original proceedings. Reason: the proper administration of justice. Extinction of the original claim without a judgment on its merits. Effect. Extinction of the incidental claim and the court's being precluded from adjudicating it separately, because the basis for its admissibility is its connection with the original claim. - An action to establish a state of affairs. A preservatory action. The judgment therein prepares evidence to prove or disprove the substantive action. - The first two respondents brought an action seeking the appointment of an expert in preparation for amending their claims according to the findings of the report. The appellant brought a counterclaim therein for compensation. The judgment in the original action declaring the action concluded entails the extinction of the incidental claim, and thus a judgment declaring it inadmissible, rather than dismissing it, is required. The challenged judgment's departure from this and its adjudication of the merits of the counterclaim. A contravention of the law and an error in its application requiring its cassation. Rule: The provision in the first paragraph of Article 85 of the Code of Procedure that “The plaintiff or defendant may submit such incidental claims as are connected with the original claim in a manner that makes their joint examination conducive to the proper administration of justice ...” indicates that the legislature established a general criterion for the admissibility of an incidental claim: its close connection with the original claim in a manner that makes their joint examination conducive to the proper administration of justice. This necessarily means that an incidental claim must be submitted during pending original proceedings, to which it is ancillary and from which, and from what occurs therein, it cannot be separated. If the original claim ceases to exist without a judgment on its merits because the proceedings have ended for any reason, the incidental claim consequently ceases to exist, and the court is precluded from adjudicating it separately, because the basis for its admissibility is its connection with the original claim. It is also established—in the jurisprudence of this Court—that the ultimate purpose of an action to establish a state of affairs is to take a provisional preservatory measure, and the judgment therein is merely evidence prepared to prove or disprove the substantive action. Once the evidence has been prepared, the former has reached its end. That being so, and as the documents establish that the first two respondents brought the action seeking the appointment of an expert to determine the amounts disbursed from each of their accounts with the appellant bank and the last respondent bank, in preparation for amending their claims according to the findings of the expert's report, and after the court appointed an expert who filed his report, the appellant submitted an incidental claim seeking an order requiring the first respondent to pay it KD 5001 as provisional compensation, and the first two respondents requested a judgment declaring the action concluded and dismissing the incidental claim, the original action therefore reached its end without adjudication of a substantive claim. This entails the extinction of the incidental claim upon the extinction of the original action and the absence of a connection between the two actions, requiring the incidental claim to be declared inadmissible. Since the challenged judgment departed from this view and proceeded to adjudicate the merits of the counterclaim, it contravened the law and erred in its application, which vitiates it and requires its partial cassation in this respect.