Abu Dhabi Court of Cassation (General Assembly), Commercial Appeals Nos. 975 and 988 of 2022, judgment of 7 February 2023
Under Article 164 of the former Civil Procedure Law (as amended in 2018), a respondent to an appeal may lodge its own appeal, by ordinary procedure or by a memorandum with grounds, only up to the first hearing for exchange of memoranda before the case management office; if lodged within the appeal period it is a counter-appeal, if later a cross-appeal. After that hearing it is inadmissible, even if the thirty-day appeal period under Article 159 has not expired. Article 166 of the 2022 Civil Procedure Law keeps the same rule, tied to the first hearing before the case management office or the court.
A bank sued a customer in the Al Ain court for AED 6,193,276.72 under credit facilities (a forward ijara and an overdraft) secured by, among other things, a real estate mortgage, plus 12% interest. A court expert, after crediting the rental income of the financed villas collected by a joined company, found AED 2,640,907.25 due, and the court awarded that sum with 1% interest on the principal of AED 5,437,281.59, capped at the principal. The customer appealed (No. 291 of 2022); the bank filed its own appeal (No. 319 of 2022) on 13 October 2022, after the first hearing before the case management office on 10 October. The Court of Appeal declared the bank's appeal inadmissible and upheld the judgment. Both sides appealed in cassation, and the Second Commercial Chamber referred the appeals to the General Assembly because some chambers required a counter-appeal to be filed by the first hearing before the case management office, while others accepted it within thirty days of the judgment under Article 159.
The General Assembly held that, although Article 159 of Federal Law No. 11 of 1992 sets a thirty-day appeal period, it allows other periods where the law so provides. Article 164, as amended by Decree-Law No. 18 of 2018 and its implementing regulation (Cabinet Resolution No. 57 of 2018), gives the respondent the right to appeal, by ordinary procedure or by a memorandum with grounds, until the first hearing for exchange of memoranda before the case management office; it is a counter-appeal if filed within the appeal period and a cross-appeal if filed later or after acquiescence. After that hearing the respondent's appeal is inadmissible. The General Assembly noted that Article 166 of Federal Decree-Law No. 42 of 2022 is to the same effect.
Applying the principle, the bank's appeal, filed after the first hearing, was rightly declared inadmissible. The customer's challenges to the expert's account were matters of fact for the trial court. Both appeals were dismissed.
A party that is partly successful at first instance and waits to see whether the other side appeals can lose its own right of appeal if it does not act by the first case-management hearing. The decision, given in a bank facilities dispute, applies equally under the current Civil Procedure Law, whose Article 166 sets the same cut-off.
| Articles 159 and 164 of Federal Law No. 11 of 1992 (former Civil Procedure Law), Article 164 as amended by Federal Decree-Law No. 18 of 2018 Decided under this law; it has been replaced by Civil Procedure Code. |
| Cabinet Resolution No. 57 of 2018 (Implementing Regulation of the former Civil Procedure Law) |
| Article 166 of Federal Decree-Law No. 42 of 2022 (Civil Procedure Law) — text of article 166 |
| Article 10 bis (3) of Abu Dhabi Law No. 23 of 2006 on the Abu Dhabi Judicial Department, as amended by Law No. 13 of 2018 |
“بإقرار مبدأ وجوب تقديم الاستئناف المقابل أو الفرعي حتى تاريخ الجلسة الأولى لتبادل المذكرات والردود أمام مكتب إدارة الدعوى”Short quotation from the judgment as published by the court. The full judgment is on the court’s official service.
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