The Dubai Court of Cassation’s judgment in Case No. 5 of 2023 – General Assembly Decisions sheds significant light on a critical procedural question under UAE Civil Procedure Law: When service by publication is conducted due to the inability to locate a party, is it necessary to repeat the investigation for each subsequent stage of litigation?
This pivotal ruling underscores the balance between procedural diligence and judicial efficiency. In this blog, we explore the legal reasoning of the court, its implications for litigants and practitioners, and the broader context of service by publication under UAE law.
The Context of the Case
Service of process is fundamental to ensuring a fair trial. UAE Civil Procedure Law, particularly Article 9 of the Federal Law No. 11 of 1992 (as amended), prescribes specific methods for serving notices, especially when the recipient cannot be located. The law requires the party seeking service to make reasonable efforts to determine the recipient’s address before resorting to service by publication.
In this case, the General Assembly of the Dubai Court of Cassation was tasked with determining whether an earlier investigation to locate a party’s address could suffice for subsequent stages of litigation, such as appeals or enforcement.
Legal Framework
Article 9(3) of the Civil Procedure Law permits service via publication in situations where:
The recipient’s address or place of work is unknown, and Reasonable efforts to locate the recipient have been exhausted through inquiries with relevant authorities.
Service by publication is considered an exceptional measure and is permitted only after demonstrating diligent attempts to locate the recipient. Such service is conducted by posting the notice on the court’s electronic portal and publishing it in widely circulated newspapers in Arabic and, if required, a foreign language.
The Court’s Reasoning
The court recognized two competing principles:
- Independence of procedural stages: Each stage of litigation is procedurally distinct, and defects in one stage do not automatically invalidate others.
- Judicial efficiency: Repeating investigations for every stage of litigation could unnecessarily delay proceedings.
The General Assembly concluded that, in principle, a single investigation suffices unless specific circumstances of a subsequent stage necessitate further investigation. The court emphasized that:
- The sufficiency and diligence of the initial investigation must be thoroughly assessed by the trial court.
- The decision to repeat the investigation is at the discretion of the presiding judge, based on the facts and circumstances of the case.
- This ruling aligns with the overarching goal of expediting justice without compromising procedural fairness.
Implications for Litigants
For Plaintiffs: Plaintiffs must ensure their initial attempts to locate the defendant are exhaustive and well-documented. Courts will scrutinize these efforts before permitting service by publication.
For Defendants: A defendant who challenges the adequacy of service must provide compelling evidence that the plaintiff’s investigation was insufficient.
For Practitioners: Lawyers should advise clients to document every step of the investigation process meticulously, as this will likely determine whether service by publication is upheld.
Balancing Diligence and Efficiency
The ruling exemplifies the court’s approach to balancing the competing demands of diligence and efficiency:
- On one hand, procedural diligence ensures that parties are given a fair opportunity to participate in the proceedings.
- On the other hand, judicial efficiency prevents undue delays that could hinder the resolution of disputes.
- The General Assembly’s decision reflects the court’s understanding that procedural technicalities should not be weaponized to delay justice unnecessarily.
A Broader Perspective
The court’s decision resonates with the UAE’s commitment to a modernized judicial system, one that leverages technology while adhering to principles of fairness and equity. The reliance on electronic platforms and publication in multiple languages ensures accessibility while reducing procedural bottlenecks.
Conclusion
Case No. 5 of 2023 – General Assembly Decision establishes a crucial precedent for handling cases involving service by publication. By clarifying that a single diligent investigation may suffice for all stages of litigation, the court has provided much-needed guidance to litigants and practitioners alike.
This ruling is a testament to the UAE judiciary’s ability to address complex procedural questions while fostering judicial efficiency and fairness.
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