A grievance against a payment order must be heard by a judge other than the one who issued it

The principle

Under Article 147(1) of the Civil Procedure Code, a party may file a grievance against a payment order whose value is within the final jurisdiction of the first-instance court before 'the competent payment-order judge'. The judge who issued the order has examined its conditions and the merits of the creditor's right and, when rejecting it or when it concerns the enforcement of a commercial contract, must give reasons (Article 145). Having expressed a view, he is barred from hearing the matter again (Article 116(1)(g)); a judge cannot review his own decision unless the law expressly says so, as Article 140(1) does for orders on petition. The grievance therefore goes to a different competent payment-order judge.

The case and the decision

The Technical Office of the Court of Cassation asked which judge should hear a grievance (تظلم) against a payment order under Article 147(1) of the Civil Procedure Code: the judge who issued it, or another judge. The President of the Court referred the question to the General Assembly under Article 20(a)(1) of Dubai Law No. 13 of 2016 on the Judicial Authority.

The Assembly reviewed the scheme of Federal Decree-Law No. 42 of 2022 (Civil Procedure Code). Under Article 144(1) the creditor must first demand payment within at least five days and then apply for a payment order to the judge of the court of the debtor's domicile or of the place where the agreement was made or performed. Under Article 145 the judge accepts or rejects the application in whole or in part and must give reasons if he rejects it or declares it inadmissible, and in every case where it concerns the enforcement of a commercial contract. Under Article 147(1) the parties may file a grievance within 15 days, before the competent payment-order judge, by the ordinary procedure for bringing a claim; the judge's decision on the grievance is final.

The Assembly reasoned that the judge who issues an order acts judicially, examining the conditions and the substance of the creditor's right, so he has expressed his opinion. Allowing him to hear the grievance would conflict with Article 116(1)(g), which disqualifies a judge who has previously heard the case. A judge has no authority over his own decision unless the law says so, and where the legislature wanted the issuing judge to hear a grievance it said so expressly, as in Article 140(1) on orders on petition. The Assembly directed that a grievance under Article 147(1) be heard by a competent payment-order judge other than the issuing judge.

Laws applied

In the court’s words

“يكون أمام قاضي أمر أداء مختص غير الذي أصدره”

Short quotation from the judgment as published by the court. The full judgment is on the court’s official service.

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