Dubai Court of Cassation (General Assembly), Resolution No. 9 of 2023, 24 October 2023
Under the 2022 Civil Procedure Code a claim is brought when the case management office registers the statement of claim and the fee is paid (Articles 44 and 47); service on the defendant is a separate, later step. A defect in service therefore does not deprive a correctly drafted and registered statement of claim of its effects. Where the court of first instance has decided the merits and the Court of Appeal finds the judgment void because the defendant was not properly served with the statement of claim, it must neither stop at declaring the nullity nor remit the case, but must decide the merits itself (Article 168). The Assembly abandoned the contrary principle of Appeals Nos. 210 of 1993 and 108 of 2001.
In Appeals Nos. 210 of 1993 and 108 of 2001 the Court of Cassation had held that proceedings are not validly constituted if service of the statement of claim on the defendant is void; if service was not validly made before the first-instance judgment, the proceedings lapse and no later step cures the defect, so the Court of Appeal must stop at declaring the first-instance judgment void, without deciding the merits (to preserve two levels of jurisdiction) and without remitting, since the first-instance court had exhausted its jurisdiction. By contrast, in Appeals Nos. 414 and 917 of 2022 (real estate) the Court held that, whereas Article 166(2) of the former Civil Procedure Law required remittal where nullity related to service of the statement of claim, Article 168 of the 2022 Code (in force from 2 January 2023) contains no such paragraph, so the Court of Appeal must set the judgment aside and decide the case even where the nullity relates to service.
After reviewing reports of the Technical Office and its secretariat, the General Assembly relied on Articles 44, 47, 49 and 168 of Federal Decree-Law No. 42 of 2022. A claim is brought once the case management office registers the statement of claim, electronically or on paper, and the fee is paid within the time allowed; it produces its effects from filing. Service on the defendant is a separate later step meant to inform him of the claim, the requests and the hearing. A void service does not suspend the effect of a statement of claim whose contents are correct and complete, since proceedings exist to reach a decision. So if the first-instance court decided the merits and the Court of Appeal finds its judgment void for a defect that does not extend to the statement of claim itself, it must go on to decide the merits by a new judgment, observing the correct procedure, which preserves the parties' rights, time and costs and the valid steps already taken.
The Assembly departed from the earlier principle and adopted that of Appeals Nos. 414 and 917 of 2022.
Default judgments obtained against defendants who were not properly served are no longer simply wiped out, forcing the claimant to start again. The Court of Appeal decides the dispute itself, preserving the original filing date and fees, while the defendant obtains a full hearing of the merits before that court.
| Articles 44, 47, 49 and 168 of Federal Decree-Law No. 42 of 2022 (Civil Procedure Code) — text of articles 44, 47, 49, 168 |
| Article 166 of Federal Law No. 11 of 1992 (former Civil Procedure Law) Decided under this law; it has been replaced by Civil Procedure Code. |
“يتعين ألا تقف عند حد تقرير هذا البطلان بل يجب أن تمضي في الفصل في الموضوع بحكم جديد تراعى فيه الاجراء الصحيح الواجب إتباعه”Short quotation from the judgment as published by the court. The full judgment is on the court’s official service.
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