Session Date: 30 April 2009

Appeal by Cassation No. 30 of 2009 – civil appeal by cassation

(1- 3) Compensation – appeal by cassation “powers of the Cassation Court” – judgment “its reasoning: defects in evidential establishment: bad argumentation” – liability “tortuous liability: its pillars: fault: what is not considered as such” “among its typologies: liability for misusing the rights of litigation and defence” – first instance court “its power to describe faulty acts”.

(1) Lawful exercise of a right – that a person doing so is not liable for damage to a third party resulting from such exercise – unlawful exercise of a right – its prerequisite – intention of damage to a third party – realization of the same in the absence of interest in the exercise of such right.

(2) The right to litigation and defence – among the permissible rights – its requirement – a person approaching justice, either pleading or defending a right is not liable unless he deviates from doing so into animosity in litigation with intention to cause damage to the opposing litigant.

(3) depicting acts as faulty – a matter of law – subject to supervision by the Cassation Court (an example of bad argumentation relating to compensation for abusing the exercise of the right to litigation).

1- It is established jurisprudence of this Court that whoever lawfully exercises a right shall not be liable for any damage to a third party resulting from such exercise, and that the exercise of rights does not become unlawful unless it is solely intended to cause damage to a third party, which is only realized where no interest exists behind the exercise of such right.

2- It is established jurisprudence of this Court that the rights to litigation and defence are among the permissible rights. A person approaching justice for pleading or defending his claimed right should not be held liable unless it is proved that he deviated from such permissible right into animosity in litigation despite the obviousness of such right with the intention to cause damage to the opposing litigant.

3- Describing an act as faulty is a matter of law, subject to supervision by the Cassation Court. It was evident from the judgment on the claim No ……. that the Appellant Bank brought such claim against …… Company and the Respondents applying for ordering them to jointly pay an amount claimed by the Bank against such Company, which was guaranteed by the Respondents who own it. The Respondents claimed forgery of the guarantee agreement presented by the Bank. The court issued a judgment invalidating and rejecting such agreement for lack of belief in its authenticity, since the Bank did not exercise due diligence upon its execution, and it held the Company alone as liable for the debt which was proved against it. This jurisprudence does not indicate that the Appellant in the previous claim has intended to cause damage to and hurt the Respondents. This is because negligence in taking necessary precautions upon executing a contract is a forgivable mistake, insufficient to prove deviation from a right guaranteed through litigation into animosity and malice. The judgment appealed against by cassation considered the Appellant to have behaved in the previous claim so abnormally that a compensation judgment was due against him. It has also involved bad argumentation. Accordingly, such judgment has erred in the application of the law and should be subject of cassation. 

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The Court

Having reviewed the documents, and having heard the report read out by the Judge-Rapporteur, and heard the submissions, and after the deliberations;

Whereas the appeal by cassation has satisfied its formalities;

The facts, as revealed in the judgment appealed by cassation and other documents, may be summed up as follows. The Respondents brought against the Appellant Bank the claim No 231/2007 applying for a judgment ordering such it to pay two million Riyals. They stated that the Appellant had brought against them the claim No 1292/2003 applying for a judgment ordering them to pay to it an amount of money. It produced in evidence a document established to be a forgery. They have consequently been inflicted with material and moral damages worthy of compensation at the amount applied for. Accordingly they brought the claim. The court of first instance issued a judgment dismissing the claim. The Respondents lodged an appeal No 520/2008. On 20.12.2008 the Court of Appeal issued a judgment quashing the appealed judgment and ordering the Appellant to pay to the Respondents in compensation the amount of 425,000 Riyals. The Appellant lodged against such judgment an appeal by cassation, which was presented before this Court, at the deliberations chamber, where it fixed a session for its consideration.

The Appellant contends against the judgment appealed against by cassation that it involved error in the application of the law and bad argumentation. He stated that exercising the right to litigation is legitimate so long as it does not involve bad intention. Differences in assessing winning or losing a claim do not render a litigant one with bad intention. The Appellant pleaded before the first instance court that he did not intend to cause damage to the Respondents in the previous claim, but that the judgment reached otherwise using unreasonable grounds, and ordered compensation against him, which renders such judgment defective and worthy of cassation.

Whoever lawfully exercises a right shall not be made liable for any damage to a third party resulting from such exercise, which only becomes unlawful where it is solely intended to cause damage to a third party. This would only be realized in the absence of any interest in the exercise of the right. The right to litigation and defence are among the permissible rights. A person approaching justice for pleading or defending his claimed right should not be held liable unless it is proved that he deviated from such permissible right into animosity in litigation despite the obviousness of such right with the intention to cause damage to the opposing litigant. Describing an act as faulty is a matter of law, subject to supervision by the Cassation Court. It was evident from the judgment on the claim No 1292/2003 that the Appellant Bank brought such claim against a Qatari company (…) and the Respondents, applying for ordering them to jointly pay an amount claimed by the Bank against such Company, which was guaranteed by the Respondents who own it. The Respondents claimed forgery of the guarantee agreement presented by the Bank. The court issued a judgment invalidating and rejecting such agreement for lack of belief in its authenticity, since the Bank did not exercise due diligence upon its execution, and it held the Company alone as liable for the debt which was proved against it. This jurisprudence does not indicate that the Appellant in the previous claim has intended to cause damage to, and hurt the Respondents. This is because negligence in taking necessary precautions upon executing a contract is a forgivable mistake, insufficient to prove deviation from a right guaranteed through litigation into animosity and malice. The judgment appealed against by cassation considered the Appellant to have behaved in the previous claim so abnormally that a compensation judgment was due against him. It has also involved bad argumentation. Accordingly, such judgment has erred in the application of the law and should be subject of cassation, with no need to consider the other reasons of this appeal.

According to the aforesaid, and since the subject-matter is ripe for settlement, this appeal should be dismissed.