Kuwait Court of Cassation principle number 294

Summary: - Notifying the litigants by registered letter of receipt of the expert’s report and of the hearing scheduled to consider the action. Falls upon the Registry, not the expert. The effect of this notification is the termination of the litigants’ exemption from attending hearings before the court while the expert is carrying out the assignment. Completion of notification. Its consequence. They must attend the hearings. Failure to attend. Its effect. Striking out the action or rendering judgment in their absence. - The papers containing nothing indicating that the litigants were notified of receipt of the report, and their failure to attend the hearing scheduled to consider the action. The effect thereof: failure to notify is considered a cause preventing the succession of hearings from operating against the litigant, precluding striking out the action and deeming it as though it had never been brought as a sanction therefor. The challenged judgment’s departure from this and its ruling deeming the action as though it had never been brought as a sanction for non-attendance. An error in the application of the law requiring its cassation. Rule: The provision in Article 14 of the Law Regulating Expertise promulgated by Decree-Law No. 40 of 1980 that “... The Registry shall notify the litigants—by registered letter—of the filing of the report and of the date of the hearing scheduled to consider the action” indicates—as explained in the explanatory memorandum—that the law placed upon the Registry, rather than the expert, the task of notifying the litigants by registered letter that the expert has filed his report and of the date of the hearing scheduled to consider the action before the court, particularly since this notification has acquired a new, special importance owing to the exemption of litigants from the burden of attending hearings before the court while the expert is carrying out his assignment. That exemption expires upon the aforementioned notification, since after such notification the litigants must regularly attend the court hearings if they wish to avoid a judgment striking out the action or a judgment on its merits in their absence if it is ready for such determination. That being so, and since it is established in the papers that the court of first instance appointed an expert in the action, and when the expert filed his report the court decided to adjourn consideration of the action to the hearing of 19/2/2013 to notify the plaintiff of receipt of the report, and at that hearing the plaintiffs did not attend, the court decided to reserve the action for judgment and ruled that the action be deemed as though it had never been brought as a sanction for non-attendance. The case papers contain nothing indicating that the appellants were notified of receipt of the report. Moreover, the notification of receipt of the report dated 20/1/2013 attached to the papers was not effected, whether through the process server or by registered post. Accordingly, the appellants were not notified of the filing of the report and of the date of the hearing scheduled to consider the action pursuant to the Law Regulating Expertise. This constitutes a cause preventing the succession of hearings from operating against them both, with the consequence that the action may not be struck out for non-attendance before notification of receipt of the report. Since the first-instance judgment, upheld by the challenged judgment, ruled that the action be deemed as though it had never been brought as a sanction for the appellants’ failure to attend the hearing of 19/2/2013, despite their not having been notified of receipt of the expert’s report and of the scheduled hearing, it is vitiated by an error in the application of the law requiring its cassation on this ground, without any need to examine the remaining grounds of appeal.