Hadef in the Courts: Re-examination and retraction of final judgments of the UAE courts

In brief:

1. A party bound by a final judgment of the Federal Supreme Court or a local Court of Cassation may seek re-examination of such judgment on certain grounds;
2. The court may, on its own volition, or upon being petitioned by an aggrieved party consider retracting an otherwise final judgment which meets the criteria set out in the amendment to Article 187 of the Civil Procedure Law promulgated on 3 September 2021;
3. The amendment has ensured that the Civil Procedure Law evolves in accordance with best international practice and that justice is not denied on false or negligent grounds.

The UAE Federal Law No. 11 of 1992 (“Civil Procedure Law”), its amendments and implementing regulations provide the procedural laws governing civil actions in the UAE.

While the Civil Procedure Law explicitly regards judgments of the Federal Supreme Court or a local Court of Cassation as having attained finality with no further recourse to an appeal, it also provides  certain grounds for initiating a review of such judgments or for their nullification.

In most cases, litigants have two levels of appeal available. However, an exception to this is the option of re-examination and retraction of a judgment provided that very specific criteria are met. These include:

1. If a litigant commits a fraud affecting the judgment or decision.
2. If the judgment or decision is based on documents considered to have been forged according to an admission or a ruling after the judgment or decision has been rendered, or based on testimony declared to be perjury after its rendering.
3. If the petitioner, after rendering the judgment or decision, obtains crucial documents and the other litigant prevents the submission of them.
4. If the judgment or decision determines something the litigants have not claimed or beyond their claims.
5. If the operative part of the judgment or decision is self-contradictory.
6. For any person on whom the judgment or decision rendered in the action is binding, but he has not been impleaded or has not intervened in the action, provided that the fraud, complicity or gross negligence of the person who has represented him is proven.
7. If the judgment or decision is rendered against a natural or legal person not duly represented in the action.

In a recent amendment promulgated on 3 September 2021, the ambit of the relevant provisions of the Civil Procedure Law was widened and grounds for retracting an otherwise final judgment were provided. The amendment empowers the court to retract a judgment on its own volition or at the request of the aggrieved party under the following conditions:

1. If the decision or judgment suffers a procedural error made by the court or its auxiliary bodies, which had a bearing on the judgment;
2. If the decision or judgment is based on a repealed law, and application of the correct law would change the conclusion; or
3. If the decision or judgment was issued in contradiction to any of the judicial principles decided by the panel or all circuits of the court, as the case may be, without those principles being presented to it, or if it was issued in contradiction of the principles established by the court or by the Commission on Unification of Principles between the Federal and Local Judicial Authorities.

Procedurally, the petition for re-examination is submitted before the same court that issued the decision and may be considered by the same judge/s that issued the judgment. The re-examination application, if approved, does not have any effect on the execution process, unless the court orders a stay of execution.

As far as retraction is concerned, the application is submitted before the President of the Federal Supreme Court or the President of the local Court of Cassation. It is considered by a panel of five senior-most judges of the court (provided that none of those judges issued the judgment or decision that is being challenged). The panel, upon reviewing the case, issues a reasoned decision on the application for retraction by a majority of four judges.

The amendment providing for retraction does not have retrospective effect and does not apply to judgments and decisions issued before 3 September 2021.

Since the law provides very specific grounds under which such applications may be initiated, it makes the scope of revision or retraction very limited. Nevertheless, it is a welcome step that the UAE Cabinet has taken to consider the retraction of certain judgements under the overarching principle that justice must prevail.

If you would like more information on this topic and Dispute Resolution, or have any question, please contact Karim Mahmoud, Partner, Dispute Resolution or Abdul Hannan Mian, Associate, Dispute Resolution.