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Overview of the Proceedings and Reasons for Delay within the Court of Cassation

Analysis The United Arab Emirates (the "UAE") is a constitutional federation established in 1971 and composed of seven Emirates- Abu Dhabi, Dubai, Sharjah, Ras Al Khaimah, Umm Al Quwain, Ajman and Fujairah. During the UAE's establishment, the rulers of the seven Emirates agreed upon a provisional constitution (the "Constitution"), which provided the legal framework for the newly unified federation.

In consonance with the Constitution, each of the seven Emirates could either solely adopt the UAE's federal legal system to be that of their respective Emirate's for civil and criminal matters, or maintain its own civil and criminal legal system in a manner which does not breach the laws of the federation. The five Emirates of Abu Dhabi, Sharjah, Ajman, Umm Al Quwain and Fujairah opted to incorporate their judicial systems to be that of the federal system, whereas Dubai and Ras Al Khaimah opted to establish their own independent legal systems. However, notwithstanding Dubai's retention of its independent judicial system, the civil courts of this Emirate apply the UAE Federal Civil Procedures Law, Federal Law No. 11/1992 (the "UAE Civil Procedures Law").

Whether on a federal or Emirate level, the current court systems within the UAE are three-tiered, with the matters initiating at the Courts of First Instance, prior to being eligible for appeal at the Courts of Appeal and if necessary, subject to adjudication at the highest level Courts of Cassation.

The primary aim of dividing the judicial system into three tiers is to provide litigants with ample opportunity to present their claims and defenses before the judges, as well as allow for a re-examination by higher courts on both matters of fact and law should the litigants be discontent with judgments rendered by lower courts.

Each of these courts has a civil division, a criminal division and a Shari'a division. The Emirate of Dubai also has a Labor Court, which deals exclusively with disputes between employers and employees, and a Property Court which deals exclusively with real estate property disputes.

Establishment of the Emirate of Dubai's Court of Cassation The Emirate of Dubai's Court of Cassation was established under Dubai Law No. (1) of 1988. The Dubai Court of Cassation (the "Cassation Court") is the third and highest degree of litigation in the Emirate of Dubai's judicial system. The jurisdiction of the Cassation Court is stipulated within Articles 173 to 188 of the UAE Civil Procedures Law, Dubai Law No. 3/1992 concerning Court Formation in the Emirate of Dubai, and Dubai Law No. 6/2005 organizing the Dubai Courts.

As per Article 173 of the UAE Civil Procedures Law, parties to civil, commercial, real estate and labor claims, may appeal against the lower courts' judgments before the Cassation Court when the quantifiable value of the claim exceeds AED 200,000/- , if the value of the claim is unquantifiable, the parties may appeal in the below-mentioned circumstances:
  • if the judgment appealed against is based on a contravention of the law or error in the application or interpretation thereof;
  • if there is a voidness in the judgment or in the proceedings having an effect on the judgment;
  • if the judgment appealed against was made contrary to the rules of jurisdiction;
  • if a determination on a dispute has been made contrary to another judgment passed on the same subject matter between the same parties, which has achieved the status of res judicata;
  • if the judgment does not contain reasons, or if the reasons are insufficient or ambiguous; or
  • if judgment has been passed on an application not made by one of the parties, or for something more than has been applied for.
The parties to the dispute may appeal before the Court of Cassation against any final judgment - whatever court passed it - that has agreed on a dispute contrary to another judgment previously issued between the same parties and having achieved the status of res judicata. However, judgements passed by the appeal courts in execution procedures are not appealable at cassation. As such, it is pertinent to note that the Cassation Court primarily focuses its review of matters on the lower courts' application of the law, and not the facts of the case itself.

Types of Cases Heard at the Dubai Court of Cassation The types of cases heard at the Cassation Court are civil, criminal, commercial, labor, and the personal status of Muslims and Non- Muslims, and each case criteria is subject to meeting the requirements disclosed within Article 173 of the UAE Civil Procedures Law. However, it is pertinent to note that there are specific circumstances which mandatorily require and are reserved for adjudication by the UAE Federal Courts located in the Emirate of Abu Dhabi.

There is a single circuit of judges consisting of five senior judges (one of whom is the president of the circuit) for each respective case criteria heard within the Cassation Court, and each circuit conducts and adjudges upon all the claims brought forth under the respective case criteria it is authorized to adjudicate upon. To clarify and by means of example, any and all claims pursued before the Cassation Court which are classified to be commercial are handled, deliberated and adjudged upon by a single circuit consisting of 5 judges.

The Initiation of Proceedings at the Dubai Court of Cassation Grace period As per Article 176 of the UAE Civil Procedures Law, the time limit within which an appeal in relation to a civil, criminal, commercial, labor, or personal status claim can be filed before the Cassation Court is 60 days from the date on which the Dubai Court of appealed judgment was issued (the "Grace Period").

Procedure to register an appeal at the Dubai Court of Cassation Unlike the Dubai Court of First Instance and Dubai Court of Appeal, the registration of an appeal before the Cassation Court cannot be initiated online through the Dubai Courts web portal and will need to be processed in person. Moreover, as summarized under Articles 177 to 180 of the UAE Civil Procedures Law, the party registering an appeal before the Cassation Court (the "Appellant") requires a licensed advocate to represent him before the Cassation Court.

The Appellant's statement of appeal prescribing the grounds on which the appeal is based, including copies of the same for the responding party (the "Respondent(s)"), will need to be lodged with the Cassation Court's registration desk along with the associated court fees to be paid by the Appellant.

Relevant payable fees include a fixed fee of AED 2,000 for the appeal's registration at the Cassation Court, which may be subject to revision. Ministries, governmental bodies and departments, and other similar entities within the UAE are exempt from paying such fees. The Appellant is also required to deposit an amount of AED 3,000 with the Cassation Court's treasury by way of security, which shall be refunded to the Appellant in case the Cassation Court adjudged in his favor by sustaining his appeal. There is also a fixed fee of AED 1,000 payable for each application submitted by the Appellant for stay of execution proceedings of the judgment appealed against.

Upon processing the payment in full, the appeal is immediately registered and assigned with its reference/short code. Should the Appellant wish to apply for a stay order by the Cassation Court requiring temporary suspension of any ongoing execution proceedings (the "Stay Order"), the same will need to be filed alongside the appeal's registration.

Upon the appeal's registration, the Appellant will then be required to follow up with the Cassation Court's notification department to facilitate a quick service of the summons upon the Respondent(s).

Once the summon has been served through the Cassation Court, the Respondent(s) should lodge a statement of defense in response to the Appellant's appeal within 15 days from the date of such service upon Respondent(s).

Initiation and conclusion of the trial at the Dubai Cassation Court As soon as the Respondent(s) has submitted the required statement of defense, the concerned court clerk responsible for administering the day to day affairs of the relevant circuit of judges compiles the case file together with all previous submissions made by the parties before the lower courts, and forwards it to the circuit who will be conducting the necessary deliberation of the appeal as to its admissibility.

In case the Appellant has applied for a Stay Order by the Cassation Court along with the appeal, the Cassation Court will look into such appeals on a priority basis and shall first decide upon the request of Stay Order before proceeding with deliberations into the appeal.

The Cassation Court has discretionary power to accept or dismiss the Appellant's request to issue the desired Stay Order. In case of its refusal, the execution proceedings will continue to proceed irrespective of the proceedings before the Cassation Court. However, should the Cassation Court decide to approve the requested Stay Order, the execution court shall be bound by the order and henceforth will halt its proceedings therefrom until finalization of the proceedings before the Cassation Court.

It is important to note that as per Article 175 of the UAE Civil Procedures Law, it is mandatory for the Cassation Court to accept the Appellant's request for postponing execution proceedings for Stay Orders pertaining to matters of ownership of properties and revocation of marriage or divorce.

After the Stay Order has been refused or accepted, the president of the relevant circuit then appoints one of the circuit's judges to prepare a summary of the appeal for the circuit's perusal. Once such summary has been made, it is then forwarded to the court's office for a hearing to be scheduled wherein the case shall be heard in the circuit's consultation room.

Such hearing could essentially be termed as the "preliminary" hearing wherein the Cassation Court determines to allow or disallow the appeal.

Often, an appeal at this stage could be disallowed on the grounds that the Grace Period within which the appeal should have been brought forth has lapsed, or the registration proceedings therein are void, or the appeal has been brought on grounds not established within Article 173 of the UAE Civil Procedures Law. These grounds for disallowing an appeal within the "preliminary" hearing are recorded in the minutes of the hearing and supported with a brief reference as to the reason for refusal.

If the circuit finds the appeal fit to be heard, it shall schedule a hearing for the initiation of the trial upon acceptance by both parties to the matter, wherein the prepared summary of the case shall be deliberated upon. On average, such trials do not last for over than 2-3 hearings, and the Cassation Court then proceeds to promulgate its judgment as to the appeal.

In exceptional cases, the Cassation Court may, as it deems fit, grant the parties the ability to conduct oral arguments for the purposes of raising and/or directing the Cassation Court's attention to any particular aspect of the appeal as detailed in their submissions.

Upon conclusion of the trial, should the Cassation Court find the appeal to be admissible or inadmissible, the Cassation Court may:
  • Dismiss the appeal
  • Rule to set aside the lower court's judgment in whole and shall refer the case back to the lower court for the necessary action; or
  • Rule to set aside the lower court's judgment in part and shall refer the case back to the lower court for the necessary action; or
  • Rule to set aside the lower court's judgment in whole and pass a new judgment thereon.
It is pertinent to note that the lower court to which the action shall be referred to by the Cassation Court shall be bound by the Cassation Court's judgment, which shall illustrate the precise scope of actions to be taken by the lower court(s).

Upon the appeal being rendered impermissible or dismissed in whole or in part, the Appellant shall be ordered to pay the relevant costs, and the security amount deposited shall be forfeited in whole or in part as determined by the Court.

Delay in proceedings within the Dubai Cassation Court Litigants operating within the UAE repeatedly experience delays attributed to various factors while pursuing matters through the Court of Cassation, with such delays initially stemming from the initiation of the case's trial and which in certain cases last for over six months from the date of the matter's registration.

Considering that the Cassation Court is the highest and final court under the judicial system of Dubai, litigants have profound belief in its supremacy and impartial judiciary. Judges of the Cassation Court are known to be more dignified and are seen as superior to the judges of the lower courts in terms of qualifications and experience. Therefore, majority of litigants are driven to pursue their quantifiable or unquantifiable claims through the Cassation Court.

The criteria for quantifiable values of claim to exceed AED 200,000/- are also considerably below par, and as such opens floodgates whereby many litigants qualify in pursuing their respective claims through all three tiers of the Dubai judicial system. Setting the quantifiable claim criteria to such a relatively low value also allows for parties to tactfully pursue their claims till the Cassation Court with the main objective of delaying the proceedings, especially in debt recovery cases.

Furthermore, once the appeal has been filed before the Cassation Court, it does not upon registration of the claim itself affix the first hearing for initiation of the trial and thus the Cassation Court is not bound by a time limit within which it needs to act upon the matter. This is unlike the procedures followed within the Court of First Instance and Court of Appeal, wherein the first date of trial is affixed as soon as the claim or the appeal is registered.

With regards to the notification proceedings, the lower courts may undertake the necessary notification proceedings as part of the trial wherein the respective court can proceed with the case in the absence of the opponent and/or its response to the claim/appeal once all ways of communicating the notification to the opponent have been exhausted. However, unlike the lower courts, the Cassation Court notifies the Respondent(s) prior to affixing the date for initiation of the trial, making the notification procedure a predominant part of the pre-trial proceedings, and as such, the Cassation Court does not commence deliberation into the appeal until submission of the statement of defense by the Respondent(s). The lack of setting a time limit from the date of registration of the appeal with the Cassation Court can be perceived as a systematic error which puts the matter under the risk of remaining open for an unspecified period of time. Moreover, since the Cassation Court is not directly involved in guidance of such notification proceedings, the effectiveness of such a process is directly dependent upon how effective the litigants are at following up with the notification department , unlike at the lower courts where the judges are directly involved in following up with the concerned notification department as the progress of the notification is discussed during the trial/hearings.

Another source of delay and a major challenge faced by the Cassation Court is the exclusivity and limited amount of single circuit of judges which handle each category of cases. Since the claims pursued before the Cassation Court under a specific criteria are handled and deliberated by a single circuit of five judges who ares responsible to adjudge all claims brought forth under its criteria, an overwhelming caseload occurs.

A more apparent source of delays within proceedings at the Cassation Court is the requirement for it to review not only new submissions made by the parties but also all previous submissions made to both the Court of First Instance and Court of Appeal, and considering the slowness of the internal process of acquiring submissions from the lower courts, deliberation procedures within the Cassation Court become lengthy. Also adding to the length of deliberation procedures is the responsibility assigned to the Cassation Court whereby decision and judgments it renders shall be considered and cited as a principle of law and a precedent which shall be binding upon the judicial system in the Emirate of Dubai as a whole.

As a result of the aforementioned reasons, trials before the Cassation Court in practice begin after three to four months from the date of the appeal's registration, and it is common for appeals to remain pending before the Cassation Court for an average of five to six months, with no set trial date.

Conclusion The various factors which lead and contribute to the delay in the proceedings before the Cassation Court may suggest that if multiple circuits are designated for handling each category of cases brought before the Cassation Court, judges within the Cassation Court will no longer be overburdened. Moreover, if hearings before the Cassation Court are scheduled at the date of the appeal's registration, the Cassation Court shall be bound to undertake the necessary procedures within a particular time frame. It is also advisable for the litigants to continuously coordinate with the respective court clerk responsible to administer the notification/summoning process as this is a stage preliminary to the Cassation Court's proceedings.

It is apparent that a heavy strain is placed on the Cassation Court within the legal framework of Dubai as it is today, placing the onus on litigants, the lower courts, and the Cassation Court itself in order to decrease delays experienced when pursuing matters through the Court of Cassation.

Finally, due to the reformation procedures undertaken by Dubai Courts on a regular basis the organization of judges within all three levels of Courts is expected to improvise and thus, will contribute to mitigate the floodgates experienced by the Cassation Court, as multiple circuit of judges if appointed will be able to look into multiple files effectively and simultaneously. Also, the litigants if assured and satisfied with the fairness and comprehensiveness of the judgments rendered by the judges of lower courts they would be driven to resolve the matters at the lower stage itself without pursuing the matter further and incurring additional time and cost."

Originally published by Lexis Middle East.
Click here to view the PDF.
Published: May 2017
Publication: Lexis Middle East
Title: Overview of the Proceedings and Reasons for Delay within the Court of Cassation
Practice: Arbitration & Dispute ResolutionLitigation
Authors: Asma Siddiqui
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