Dubai Court of Cassation (General Assembly), Resolution No. 3 of 2023, 24 October 2023
An action to record the state of facts (دعوى إثبات الحالة) is a purely precautionary procedural action, brought at the claimant's expense, to preserve proof of facts likely to be disputed; it does not decide the right itself. Under Article 108 of the Evidence Law and Article 27 of the Civil Procedure Code, when the conditions of urgency and of not prejudicing the merits are met, the urgent-matters judge alone has jurisdiction; the merits court has jurisdiction only if the action is brought as ancillary to a merits case pending before it. If either condition is missing, the merits judge is competent, unless the only request is the appointment of an expert, which belongs to the Centre for Amicable Settlement of Disputes.
In Appeal No. 193 of 2006 (civil) the Court of Cassation had held, under Article 68 of the former Evidence Law, that an action to record the state of facts is a precautionary action within the urgent-matters judge's jurisdiction only if it is urgent and does not touch the merits, and that if either condition is missing jurisdiction lies with the full chamber of the court of first instance, as a claim of unassessed value.
After reviewing the report of its secretariat, the General Assembly considered Article 108 of Federal Decree-Law No. 35 of 2022 (Evidence Law), which allows a person who fears that the features of a fact likely to be disputed will be lost to ask for an inspection and record of its condition by an urgent action before the competent court, with power to appoint an expert and a hearing on the parties' comments on the report; Article 27 of Federal Decree-Law No. 42 of 2022 (Civil Procedure Code), under which a judge of urgent matters rules provisionally without prejudice to the merits, while the merits court may hear such matters if brought as ancillary to the case before it; and Article 1 of Administrative Resolution No. 51 of 2020 on the jurisdiction of the Centre for Amicable Settlement of Disputes, which covers standalone requests for expert appointment whatever their value or parties.
The Assembly held that such actions are purely procedural and protective: what is recorded in them serves as evidence the merits court may accept or reject in part, and they do not decide the right. Where urgency and non-prejudice are present, the urgent judge alone has jurisdiction, and the merits court only if the request is ancillary to a related merits case before it. If either condition is missing, the merits judge is competent, unless the request is only for the appointment of an expert, which goes to the Centre. By the majority under Article 20(b) of Dubai Law No. 13 of 2016, the Assembly departed from the 2006 principle.
Construction, property, insurance and supply disputes often start with an application to preserve evidence before the facts change. The resolution sets out which forum hears the application, the urgent-matters judge, the Amicable Settlement Centre or the merits court, which helps avoid applications being dismissed for want of jurisdiction.
| Articles 107 and 108 of Federal Decree-Law No. 35 of 2022 (Evidence Law) — text of articles 107, 108 |
| Article 27 of Federal Decree-Law No. 42 of 2022 (Civil Procedure Code) — text of article 27 |
| Article 68 of Federal Law No. 10 of 1992 (former Evidence Law), basis of the abandoned principle Decided under this law; it has been replaced by Evidence Law. |
| Article 1 of Dubai Courts Administrative Resolution No. 51 of 2020 on the jurisdiction of the Centre for Amicable Settlement of Disputes |
| Article 20 of Dubai Law No. 13 of 2016 on the Judicial Authority in the Emirate of Dubai (powers and majority of the General Assembly) |
“باختصاص القضاء المستعجل وحده بدعوى إثبات الحالة، ولا تختص محكمة الموضوع بنظرها إلا إذا رفعت إليها بطريق التبعية لدعوى موضوعية منظورة أمامها”Short quotation from the judgment as published by the court. The full judgment is on the court’s official service.
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