Kuwait Court of Cassation principle number 5

Summary: - There is no adjudication except in a dispute, and no dispute without an action brought by a claimant specifying his claims therein. Article 45 of the Law of Procedure. Its import: the judgment must adhere to what the litigants request. This is regarded as arising from the nature of adjudication as recourse to judgment between litigants over a disputed right. The court's departure from this scope. Its effect: fundamental nullity of the judgment. Its connection with public order. - Determining the claims in an action. What counts is the relief expressly and unequivocally requested in a manner brought to the court's attention. This does not include matters mentioned in the statement of claim or defence memorandum without a request for judgment thereon. - The respondent's request for a judgment appointing a forensic physician to medically examine him, establish the nature of his illness, and determine the percentage of disability and his ability to bear the burdens of work, in preparation for claiming what that report reveals, 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 to serve as the basis for a second action seeking substantive relief. Its effect: the challenged judgment must stop at declaring the action concluded. Its award of the relief and order requiring the appellant to refund a percentage of the deductions from the instalments paid towards the loan. Its effect: fundamental nullity of the judgment connected with public order. Rule: It is established in this Court's case law that there is no adjudication except in a dispute, and no dispute without an action brought by a claimant specifying his claims therein, as provided in Article 45 of the Law of Procedure. For that reason, the judgment's adherence to what the litigants request arises from the nature of the judicial function as recourse to judgment between litigants over a disputed right. If the court departs from this scope, its judgment addresses no subject matter and is thereby fundamentally void, and thus contrary to public order in a manner taking precedence over all other forms of error in the judgment falling within the dispute before the court. What counts in determining the claims is the relief expressly and unequivocally requested in a manner brought to the court's attention. This does not include matters mentioned in the statement of claim or defence memorandum without requesting the court to adjudicate them. That being so, and as established from the statements initiating the action and the appeal and all the papers, the first respondent requested, at their conclusion, a judgment appointing a forensic physician to medically examine him and establish the nature, date and cause of his illness, the surgical operations performed on him, whether they resulted in a percentage 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 reveal, 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 on any substantive claims and continued thus until the close of pleadings. Accordingly, this action is for preparing evidence to serve as the basis for a second action whose subject matter would be determined by entitlement to insurance coverage. The challenged judgment was therefore required to stop at declaring the action concluded, since there were no substantive claims defining the dispute. Accordingly, the court had no authority beyond the first respondent's request to appoint a forensic physician, and its aforementioned ruling addressed no subject matter and became fundamentally void in a manner connected with public order. It must therefore be quashed without the need to examine the remaining grounds of appeal.