Kuwait Court of Cassation principle number 72

Summary: - Notifying the litigants by registered letter of receipt of the expert's report and of the hearing scheduled for consideration of the action. The responsibility rests with the court registry, not the expert. The effect of this notification is to terminate the litigants' exemption from attending hearings before the court while the expert carries out the assignment. Completion of notification. Its implication. They must attend the hearings. Failure to attend. Its effect. Striking out the action or rendering judgment in their absence. - The papers contain nothing establishing that the litigants were notified of receipt of the report, and they failed to attend the hearing scheduled for consideration of the action. The consequence: the absence of notification is regarded as a reason preventing the succession of hearings from operating against the litigant, thereby precluding striking out the action and deeming it never to have been brought as a penalty for that. The judgment under appeal departed from this and ruled that the action be deemed never to have been brought as a penalty for non-attendance. An error in applying the law requiring its cassation. Rule: The provision in Article 14 of the Law Regulating Expert Services promulgated by Decree-Law No. 40 of 1980 that "... The court registry shall notify the litigants by registered letter of the filing of the report and of the date of the hearing scheduled for consideration of the action" indicates—as explained by the explanatory memorandum—that the law placed upon the court registry, rather than the expert, the task of notifying the litigants by registered letter that the expert has filed the report and of the date of the hearing scheduled for consideration of the action before the court. This is particularly so after this notification acquired a special, newly introduced importance by exempting the litigants from the burden of attending hearings before the court while the expert carries out the assignment. That exemption expires upon the aforementioned notification, since, after this notification, the litigants must regularly attend the court's 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 the report the court decided to adjourn consideration of the action to the hearing of 19/2/2013 to notify the claimant of receipt of the report, and at that hearing the claimants did not attend, the court decided to reserve the action for judgment and ruled that the action be deemed never to have been brought as a penalty for non-attendance. The case papers contain nothing establishing 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 registered mail. Consequently, the appellants were not notified of the filing of the report and of the date of the hearing scheduled for consideration of the action in accordance with the Law Regulating Expert Services. This constitutes a reason 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 judgment at first instance, upheld by the judgment under appeal, ruled that the action be deemed never to have been brought as a penalty 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 defective for error in applying the law, requiring its cassation on this ground without any need to examine the remaining grounds of appeal.