Kuwait Court of Cassation principle number 454

Summary: - The rule of res judicata. Its relation to public policy; the court may apply it of its own motion. Its priority in protection and consideration if it conflicts with another rule relating to public policy. The reason for this. The supremacy of binding authority over rules of public policy. The condition for this. Grounds relating to public policy must not rest on a factual element and must not be contradicted by facts not previously presented to the court of the merits. Such grounds may be invoked at any time, and the court may adopt them even if they were not included in the originating pleading. - The appellant’s institution of an action to compel the first respondent and the Minister of the Interior in his capacity to pay compensation, following a final criminal judgment convicting the first respondent of issuing a cheque without funds and referring the civil action to the competent civil court, on the basis that her fault in causing him damage was established by the aforementioned judgment and that the second respondent’s liability as an employer was established because his subordinates facilitated her escape outside the country. A previous judgment between the same litigants ordering the first respondent to pay compensation for the same right. Its effect. The action against her may not be heard because it has already been adjudicated. Its equivalence to a ruling dismissing the action against her. - The appellant’s suffering damage as a direct result of the first respondent’s fault. That fault is regarded as the effective, operative cause of the damage. The negligence of the subordinates of the second respondent in his capacity and the first respondent’s consequent escape outside the country. An incidental cause not inherently capable of causing damage to the appellant, which does not satisfy the element of causation giving rise to liability and is not regarded as a basis for it. The challenged judgment’s dismissal of the action. Correct. The complaint against it. Without basis. Rule: It is established—in this Court’s jurisprudence—that res judicata is a rule relating to public policy which the court may apply of its own motion, and that this rule has priority in protection and consideration if it conflicts with another rule relating to public policy, in view of the established supremacy of binding authority over rules of public policy. However, the condition for this is that these grounds must not rest on a factual element and must not be contradicted by facts not previously presented to the court of the merits. Grounds based on public policy may be invoked at any time and adopted by the court of its own motion even if they were not included in the originating pleading. Whereas the photocopies of the documents submitted by the appellant before the court of the merits to prove his action contain indications conclusively establishing that the aforementioned criminal judgment acquired the force of res judicata before the civil court as to establishing the first respondent’s fault, which the civil courts may not contradict and whose ruling they must abide by; they also conclusively indicate that the appellant did not neglect to claim his usurped right and that the non-referral of the civil action ancillary to the criminal action was not activated for a reason beyond the appellant’s control. They also indicate and conclusively establish that the criminal judgment was rendered in the presence of the accused, meaning that the female appellant was present at the hearing for pronouncement of the judgment and was in detention in the custody of the subordinates of the second respondent in his capacity, as the person responsible, through his police subordinates, for guarding accused persons during trial and enforcing judgments and orders of the criminal courts, and also responsible for securing the international land and air borders and all ports of entry and exit of the State to which he belongs. Accordingly, fault exists on the part of his subordinates and on his part as their employer and as responsible for the first respondent’s escape through the land ports to Oman and thence to Saudi Arabia, where she was deported to the State of Bahrain, to which she belongs, as established by the certificates proving this. However—as regards the first respondent’s liability—whereas the papers establish that the appellant had previously instituted against the first respondent Action No. ... Plenary Civil, seeking compensation for the material and moral damage he suffered as a result of her fault in issuing a cheque in his favor without existing and withdrawable funds, established under the final criminal judgment rendered in Felony No. ... for the year, Salwa Felonies, and concerning the incident of its issuance; and whereas judgment was rendered in Action No. ... for the year 2012, Plenary Civil, in his favor, ordering her to pay him compensation; and whereas this action was between the same litigants, on the same cause and concerning the same subject matter, the conditions for applying the plea that the action may not be heard because it has already been adjudicated are satisfied. This leads to the action being barred from being heard as against the first respondent—which is equivalent to the challenged judgment’s conclusion dismissing the action against her. As regards the liability of the second respondent in his capacity as an employer responsible for the acts of his police subordinates assigned to secure trials and land and air border ports, who neglected to guard the first respondent during her criminal trial, it is established in this Court’s jurisprudence that the element of causation in tort liability rests only upon the effective, operative cause producing the damage, not an incidental cause which is not inherently capable of producing such damage, however much it may have contributed by coincidence to its occurrence by accompanying the operative cause. Whereas it is apparent from the papers that the damage suffered by the appellant was a direct result of the first respondent’s fault in issuing him a cheque without existing and withdrawable funds, established under the criminal judgment rendered in Felony ... for the year 2000, Salwa Felonies, that fault is therefore the effective, operative cause producing the damage suffered by the appellant. What the latter raised concerning the negligence of the subordinates of the second respondent in his capacity, which facilitated the first respondent’s escape outside the country, even assuming it occurred, is no more than an incidental cause not inherently capable of causing damage to the appellant. Accordingly, it does not satisfy the element of causation giving rise to the State’s liability for the damage suffered by the appellant and is not regarded as a basis for it. Since the challenged judgment adhered to this view, the complaint in the two grounds of appeal is without basis.