Dubai Court of Cassation (General Assembly), Appeal No. 3 of 2023, judgment of 31 October 2023
In principle proceedings can be brought only against living persons, and a claim or appeal against someone who died before it was filed is non-existent. But the rule exists to protect the right of defence, and nullity is not declared where the purpose of a step has been achieved (Article 13 of the Civil Procedure Code). The defect is therefore cured if the deceased's heirs are joined by valid later steps at the same level of the proceedings, even after the time limit for the appeal has expired, before judgment is given. By analogy with the rules on interruption and resumption (Articles 105 and 106), the same applies to a party who lost capacity or whose representative's authority ended. The Assembly departed from its earlier contrary principle.
A buyer sued the seller of a Dubai apartment, the seller's agent and a brokerage company for rescission of a registered sale and refund of AED 2,319,000 paid to the agent. The court of first instance rescinded the sale and ordered the seller and the brokerage company to pay. The seller appealed in July 2022 against the buyer, who had died in June 2022; he later joined the buyer's heirs. The Court of Appeal declared the appeal proceedings non-existent because the respondent had died before the appeal was filed. The seller appealed in cassation, and the chamber referred the case to the General Assembly to reconsider the rule that proceedings against a person already dead are non-existent in all cases.
The Assembly reasoned that proceedings exist to reach a decision and procedure serves rights. Under Article 13 of the Civil Procedure Code a step is void only where the law says so or a defect prevents its purpose, and nullity is not declared if the purpose is achieved. Under Articles 47, 164, 173 and 179 claims, appeals, petitions and cassation appeals take effect from filing. The non-existence rule protects the adversarial principle and the deceased's defence; that reason disappears if the heirs are joined before judgment and can defend. Since under Articles 105 and 106 proceedings interrupted by death resume once the successors are summoned, the same should apply to a death before filing. By the required majority it held that joinder of the heirs by valid later steps at the same level, even after the appeal period, cures the defect.
The Assembly declared the cassation appeal inadmissible against the deceased buyer. It upheld the Court of Appeal's acceptance of the appeal and noted that, under Article 168, a Court of Appeal finding the service of the statement of claim void must decide the merits rather than remit. But, raising the point of its own motion as one of public order, it held that the Court of Appeal erred in declaring the proceedings non-existent despite the heirs' joinder, which kept it from examining the seller's defences. It quashed and remitted.
Litigation involving individuals, such as sellers, buyers, guarantors or partners, is often disrupted by a party's death, particularly where the parties live abroad. A claim or appeal filed against someone who had already died is no longer lost if the heirs are brought in properly before judgment, which avoids losing time limits through no fault of the party bringing the case.
| Articles 13, 47, 105, 106, 164, 168, 173, 179 and 180 of Federal Decree-Law No. 42 of 2022 (Civil Procedure Code) — text of articles 13, 47, 105, 106, 164, 168, 173, 179, 180 |
| Article 20 of Dubai Law No. 13 of 2016 on the Judicial Authority in the Emirate of Dubai (referral to and majority of the General Assembly) |
“اختصام ورثة من توفى قبل رفع الدعوى أو الطعن بإجراءات صحيحة لاحقة في ذات درجة التقاضي ولو كان التصحيح بعد فوات مواعيد الطعن من شأنه زوال العيب الذي شاب إجراءات الخصومة عند قيامها”Short quotation from the judgment as published by the court. The full judgment is on the court’s official service.
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