Kuwait Court of Cassation principle number 71

Summary: - The court registry’s submission of the case file to the judge or the presiding judge of the chamber, as appropriate. Cases in which this occurs: when the sequence of hearings is interrupted—whether during consideration of the case or after it has been reserved for judgment—by an intervening event disrupting the ordinary course of hearings, such as discovery that a hearing or the judgment date coincides with an official holiday, or the stay of proceedings owing to an incidental impediment to the litigation, requiring resumption of proceedings and notification of the parties of the new hearing. Purpose: 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 invalidity in 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, so that he could present his defence and submit documents substantiating it, in fulfilment of the adversarial principle. Rule: Article 72 of the Civil and Commercial Procedure Law provides that: “Except in cases of necessity, the court may not adjourn the case for more than three weeks at a time 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 said hearings is interrupted for any reason, in which case the registry must inform the parties of the new date by registered letter...”. Article 114/2, appearing in the chapter concerning delivery of judgments, provides that: “Whenever the court sets a hearing for pronouncement of judgment, it may not postpone delivery of judgment or reopen the case for pleadings except by a decision announced 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 said hearings is interrupted for any reason, in which case the registry must inform the parties of the new date by registered letter.” This indicates that the legislature established a rule whereby, when the sequence of hearings is interrupted—whether during consideration of the case or after it has been reserved for judgment—by an intervening event disrupting the ordinary course of hearings, such as discovery that a hearing or the judgment date coincides with an official holiday, or the stay of proceedings owing to an incidental impediment to the litigation, requiring resumption of proceedings and notification of the parties of the new hearing, the registry must then—as stated in the Explanatory Memorandum commenting on the two provisions—submit the case file to the judge or the presiding judge of the chamber, as appropriate, who sets a new hearing for consideration of the case or delivery of judgment. The registry must notify the parties thereof, and, to facilitate the matter, it was considered sufficient for this notification to be made by registered letter, without the need for service by a process server.” That being so, and since the appeal file and hearing minutes establish that the Court of Appeal had set the hearing of 14/11/2012 for consideration of the appeal, and since it became apparent that this date coincided with an official holiday, the appeal file was endorsed with an administrative adjournment to the hearing of 13/12/2012. However, the first respondent submitted an application to bring forward the appeal, with an obligation upon him to serve notice on the parties, and the presiding judge of the chamber approved bringing it forward to the hearing of 21/11/2012. The documents contain nothing indicating that the appellant was notified thereof. The judgment recorded his attendance, although he did not appear either in person or through a representative, while the respondent appeared, as established by the minutes of that hearing. The Court of Appeal proceeded to consider the case and decided, at the final hearing for pleadings, to reserve it for judgment. Since the documents establish 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 an invalidity affecting the judgment, thereby vitiating it and requiring that it be quashed, without the need to examine the remaining grounds of challenge.