RES JUDICATA – THE UAE APPROACH
Authored by: Dr Faraj Ahnish and Kerie Receveur
Res judicata is a fundamental legal doctrine that prevents a party from re-litigating any claim or defence already litigated. It is meant to ensure the finality of judgments and to conserve judicial resources whilst protecting litigants from multiple litigation involving the same claims or issues. There are international variations in how the doctrine is applied and what view the Courts take of the doctrine. In this article, Dr Faraj Ahnish (Managing Partner) and Kerie Receveur (Knowledge Management) consider the UAE Courts’ application of the res judicata doctrine and differences to its use in Common Law jurisdictions.
Recognition of the doctrine of res judicata in the UAE
In the UAE, res judicata is codified under UAE law in Article 92 of the Civil Procedures Law (Federal Law No.11 of 1992), and states (in translation):
A defence that the action should not be entertained because it has already been tried is permitted to be made at any stage in the action. The court shall adjudicate on it upon its own motion.
The doctrine is also recognised in Article 49 of the Federal Evidence Law (Federal Law No.10 of 1992), particularly in relation to specific issues that have been determined by a final order of a court of competent jurisdiction.
Res judicata is regarded in UAE law as a principle of public order under which a party to a dispute is permitted to introduce the doctrine at any stage of proceedings, and such party is allowed to take it up as a defence for the first time at the stage of the second and final appeal before the Court of Appeal, or even before the Court of Cassation (despite the Cassation Court not being a court of fact). However, this does not mean that the doctrine of res judicata applies on a wide basis. There are some constraints to its application in the UAE which are not present in Common Law jurisdictions.
The limitations in the UAE are that res judicata can only be used with causes of action and issues which have actually been tried and adjudicated in a previous proceeding and in situations where such previous judgments have achieved finality. This operates to exclude matters and issues that could have been presented or ought to have been tried in the previous proceedings. It is clear from Article 49 of the Evidence Law that a finding of a court on a particular issue (rather than an entire cause of action) that has achieved finality cannot be raised between the same parties litigating in the same capacity. This shows how the scope of res judicata in the UAE is narrower than in certain other jurisdictions, and is limited to ensuring the finality of a judgment, rather than encompassing the avoidance of multiple actions (as in Common Law jurisdictions).
Conditions for the application of res judicata in the UAE
The conditions applying in the UAE for the use and scope of res judicata have been developed through the writings of Arab jurists and also from the principles laid down by courts across the entire Arab region.
The prime authority is the late Professor Dr. Abdul Razak Sanhouri, who drafted the Egyptian Civil Code on which the UAE Civil Code has relied heavily in its development. He, and those prominent professors, judges and writers in the Arab world who have cited and reiterated Professor Sanhouri’s citations and pronouncements, have laid down that the conditions for a successful defence based on the doctrine of res judicata are three-fold:
- The first proceeding in which a matter or issue has been examined and decided must be identical to the second case where the defence of res judicata is being used in terms of (i) subject matter, (ii) the parties, and (iii) the cause of action.
- The matter or issue in question, which is said to be barred by the doctrine of res judicata in the second case, was examined and adjudicated upon, on merit, the first time round.
- The judgment in the first proceeding has attained finality.
Looking at the first condition, and taking each of the criteria in turn, on the question of subject matter parity, the established law that says that if a case was filed regarding particular subject matter and a judgment was delivered on that particular subject matter, neither party can file any further claim on that particular point.
If the new case is based on a new cause of action that is connected to the first case e.g. a lessor files a case against the lessee requesting the court to direct the lessee to pay rent for a certain period of time, the lessor is entitled to apply again to court to have the lessee pay rent for a completely different time period, as the two cases do not concern the same subject matter, although it is related.
The condition on parties is that they should be the same and that they should be suing and being sued in the same capacity in both cases. Res judicata judgments are only binding on parties who were previously involved in the litigation, in the same way that contracts are only binding on the parties involved in the subject matter of the contract.
UAE Court cases addressing res judicata
The UAE Courts have looked at res judicata in a number of cases, and these cases explain the conditions for application, as well as the scope, of the doctrine.
In the first example, the Federal Court of Cassation in 1997 ruled that the facts of the case under review clearly demonstrated that it was based on a cause of action, and advanced a subject matter, separate from the cause of action and subject matter involved in the first case (a claim for compensation for a breach of the Labour Law prohibiting the dismissal of an employee for non-valid reasons). The second case involved a claim for compensation for the commission of a tortious act (an assurance from an employer to an employee that the employee would remain employed, and so there was no need for the employee to accept an alternative offer of employment elsewhere). The Court of Cassation in this instance decided that since both the cause of action and the subject matter of the two cases were different, the doctrine of res judicata could not be applied.
The second example involved the Federal Court of Cassation in 2001 making a pronouncement on the same principle. The case concerned the request for the return of a cheque issued in partial implementation of an agreement between the parties to incorporate a company. The Court of First Instance found that such company had not existed between the parties so the claim failed at that stage. The second case involved the same claim but a different cause of action (the existence of a loan agreement between the parties). The Court of Cassation ruled that the appeal to res judicata was inadmissible because the subject matter and causes of action in the two cases were different, despite the fact that the parties to the disputes were the same, and the amount of the claim being sought in both instances was identical.
The third example involved the Dubai Court of Cassation in 2004, where the Court of Cassation reiterated the same principles as the Federal Supreme Court had three years previously. The first case involved a claim for compensation for material and immaterial damages following the purchase of faulty computer devices, which was initially rejected in the basis that the parties had agreed to terminate the contract amicably, so there was no reason for the claim. The second case was a claim on the basis of a different cause of action i.e. the return of the price of the devices that the purchaser had rejected and had returned to the seller. The Court of Cassation rejected this argument and ruled that “a previous judgment may not attain conclusiveness vis-à-vis another ensuing claim unless the litigants, the subject matter, and the cause of action are identical in both cases.”
The fourth example in 2011 saw the Abu Dhabi Court of Cassation again giving a narrow interpretation of the doctrine of res judicata. The Court of Cassation ruling stated that “it is the consistent view of the Court that a defence that an action should be rejected is admissible only if the litigants, the subject matter and the cause of action in both cases are identical and a final judgment on the matter has been issued.”
The final example of the application of the doctrine of res judicata took place in 2010, and again it comes from the Abu Dhabi Court of Cassation, where the Court of Cassation once more applied the narrow interpretation to Article 49 of the Federal Evidence Law.
These rulings by the Courts of the UAE demonstrate that while the concept of the doctrine of res judicata is known and recognised widely in the UAE, the conditions required (namely absolute parity between the previous judgment and the subsequent action in terms of parties, subject matter and cause of action) are being applied with restrictions which narrow down the application of res judicata in the UAE, when compared to certain jurisdictions elsewhere in the world.
This article, including any advice, commentary or recommendation herein, is provided on a complimentary basis without consideration of any specific objectives, circumstances or facts. It reflects the views of the writer which may, in some cases, differ from those of the firm, especially in the developing jurisdiction of the UAE.