Cassation
No. 647 of 2021 - Civil
Court
Panel: Chaired by Mr. Judge Shehab Abdul Rahman Al-Hammadi, Chief Judge of the
Circuit, alongside esteemed Messrs. Judges Al-Hassan bin Al-Arabi Faydi and Juma
Ibrahim Muhammad Al-Otaibi, serving as counsellors.
(1)
The court is mandated to issue a ruling that substantiates a comprehensive
understanding of the case's facts and evidence, demonstrating discernment and
exhaustive
scrutiny.
defence.
-
The court is under an obligation to deliver a ruling that demonstrates a
comprehensive understanding of the facts and evidence pertinent to the case,
showcasing discernment and thorough examination. This serves the purpose of
providing assurance to the reader that the court has diligently explored all
aspects within its jurisdiction to ascertain the truth. It is imperative for the
court to meticulously assess the defence put forth by the opposing party,
particularly when such a defence holds the potential to alter the court's stance
on the case and is corroborated by pertinent supporting documents. Failure to
undertake such meticulous evaluation renders the court's ruling susceptible to
being characterised as displaying deficiencies in reasoning.
(2)
Assessing the attorney's fees. Within the authority of the courts. The extent
thereof.
-
Article 29 of the Law on Legal Profession prescribes that an attorney receives
his fees pursuant to the terms delineated in the contract mutually agreed upon
by the attorney and their client. The court that heard the case holds the
authority, upon the client's request, to diminish the agreed-upon fees if it
deems them excessive in relation to the effort expended on the case and the
benefit accrued to the client. However, it is impermissible to reduce the fees
if they were agreed upon subsequent to the completion of the legal services. In
instances where there is an absence of a written agreement regarding the fees,
or if the written agreement is deemed null and void, the court that adjudicated
the case, in the event of a dispute and upon the plea of either the
attorney
or the client, is entrusted
with the task of appraising the attorney's fees proportionate to the exerted
effort and the benefit realised by the client.
(3)
The client's dismissal of the attorney
without legitimate reason.
-
Article 33 of the Law on Legal Profession specifies that if a client terminates
the services of their attorney without a valid justification after the
initiation of the assigned tasks, the client is obliged to remit the entire
agreed-upon fees, as if the attorney had successfully completed the assigned
work for the client's benefit. In the event of termination occurring before the
commencement of the assigned tasks, the
attorney
is entitled to fees for the
efforts expended in preparation for the work, not exceeding 25% of the
agreed-upon fees. In cases where there is no pre-existing agreement on fees, the
methodology articulated in the third paragraph of Article 29 of the Law on Legal
Profession shall be adhered to for the estimation of fees.
-
An illustration of a deficiency in reasoning is evident in the contested ruling,
which confirmed the appealed ruling by rejecting the request for attorney's fees
as stipulated in the contract between the involved parties. The rationale
provided for this rejection was based on the assertion that the lawsuit had been
filed prematurely.
1
- It is prescribed, as per the ruling of this court, that the ruling shall
incorporate elements assuring the reader that the court has thoroughly
considered the factual intricacies of the case. Also. the ruling shall reflect
the court's diligent efforts in utilising all available means to unearth the
truth therein. Furthermore, when either of the opposing parties raises a defence
that, if substantiated, could impact the formation of the court's opinion and is
supported by documentary evidence, it is imperative for the court to scrutinise
this defence in light of the potential significance of such documents. Failure
to conduct a thorough examination in these circumstances renders the court's
ruling susceptible to being marred by deficiencies in reasoning.
2-
In accordance with the provisions of law, specifically as articulated in Article
29 of the Law on the Legal Profession, it is mandated that an attorney’s
fees be received in accordance with the terms stipulated in the contract between
the attorney and their client. Nevertheless, the court that heard the case
retains the authority, upon the client's request, to diminish the agreed-upon
fees should they be deemed excessive in relation to the requisite effort exerted
and the resultant benefit to the client. Notably, the fees may not be subject to
reduction if they were agreed upon subsequent to the completion of the legal
services. In instances where there is no written agreement concerning the fees
or the written agreement is deemed null and void, the court that heard the case
is entrusted, in the event of a dispute and upon the plea of either the attorney
or the client, with the responsibility of appraising the attorney's fees in a
manner commensurate with the exerted effort and the benefit realised by the
client.
3-
The provision outlined in Article 33 of the same law explicitly dictates that
should a client dismiss their attorney without a valid justification subsequent
to the initiation of the assigned tasks, the client is under an obligation to
remit the complete fees as agreed upon, akin to a scenario where the attorney
had successfully concluded the assigned work for the client's benefit. In
instances where the dismissal occurs before the commencement of the tasks
entrusted to the attorney, the attorney is entitled to fees for the effort
invested in the preparatory phase, provided that such fees do not exceed 25% of
the mutually agreed-upon amount. In cases where there is no agreement on the
fees, the procedure delineated in the third paragraph of Article 29 of the Law
on the Legal Profession shall be adhered to for the estimation of
fees.
Given
the circumstances where the crux of the case hinged upon the request for
attorney’s fees, as stipulated in the contract executed between the
parties, the court was duty-bound to adjudicate on this matter in accordance
with the prescribed rules as outlined above. However, the contested ruling
deviated from this imperative and erroneously based the entitlement to fees on
the ultimate resolution of the case, focusing on the culmination of the effort
expended - the subject matter of the litigation - and ultimately ruled against
accepting the case due to its premature filing. Since the dispute centres around
the effort exerted at any stage of the litigation rather than its conclusion,
the contested ruling is afflicted by an error of application of the law and a
deficiency in reasoning. Consequently, the ruling shall be
reversed.
Given
the circumstances where the crux of the case hinged upon the request for
attorney’s fees, as stipulated in the contract executed between the
parties, the court was duty-bound to adjudicate on this matter in accordance
with the prescribed rules as outlined above. However, the contested ruling
deviated from this imperative and erroneously based the entitlement to fees on
the ultimate resolution of the case, rather than the effort expended.
Ultimately, it ruled against accepting the case due to its premature filing,
despite the dispute revolving around the effort exerted at any stage of the
litigation rather than its conclusion. Therefore, the contested ruling is marred
by an error in the application of the law and a deficiency in reasoning.
Consequently, it shall be reversed with remand for further
consideration.
Whereas
in the facts, as apparent pursuant to the perusal of the contested ruling and
accompanying documents, the appellant initiated Suit [Number] - Civil - against
the respondents, seeking a judicial determination on the validity and
enforceability of provisional seizure No. 495/2020 - a summary order on a
petition. The appellant further sought an order obligating the respondents to
remit the sum of five hundred thousand dirhams, alongside legal interest at the
rate of 12%, calculated from the date of the claim until full payment. The basis
for the claim rested on the appellant's capacity as an attorney, having entered
into an agreement with the first defendant on 7/7/2018 to represent and defend
him in Case [Number], with the objective of pursuing labour benefits and
compensation for a work-related injury in exchange for the agreed-upon
remuneration. The appellant asserted that he fulfilled his obligations by
diligently overseeing the case and attending its sessions for
a span of one and a half
years. Subsequently, it became apparent to him that the first defendant had
initiated Case [Number] Plenary Civil - along with its subsequent
appeal [Number] and cassation appeal [Number] - Civil - involving the same
litigants and subject matter. Notably, a ruling was rendered in those
cases preceding the one assigned to him, resulting in the determination that the
case under his purview could not be considered due to the previous ruling. The
appellant, in the course of his legal representation, bore the costs of expert
secretariat amounting to 3000 dirhams. Furthermore, in light of
rulings against the
remaining defendants in Case [Number] - Plenary Civil - the appellant
sought the imposition of provisional seizure on their bank accounts, limited to
the claimed amount, leading to the initiation of the present
lawsuit.
Following
the response of the second
to the fourth defendants, they introduced a new party, namely [Name] Metal
Construction Contracting LLC, as a debtor to the first defendant for the amount
awarded in Case [Number] - Labour - and such amount was recorded in the
general guarantee for the funds of the first respondent as a creditor of
the party added to the proceedings.
In
a session held on 9/8/2020, the court of first instance rendered a decision
deeming the lawsuit as prematurely filed, leading the appellant to file Appeal
[Number]. Concurrently, the appellant submitted a request for the inclusion of
[Name] Metal Construction Contracting LLC as a party to the lawsuit in its
capacity as a debtor to the first respondent with respect to Case [Number] -
Plenary Labour - and the imposition upon it, along with the other respondents,
jointly and severally, to remit the sum of 503,000 dirhams to the appellant,
accompanied by legal interest.
In
a session held on 4/5/2021, the Court of Appeal rendered a decision to accept
the appeal in form, but on the merits, it was rejected, thereby confirming the
appealed ruling. In response to this, the appellant filed the current cassation
appeal. The appellant contends that the contested ruling violated the law and
violated the documented facts by rejecting the case as prematurely filed. The
appellant asserts that, during the session on 16/3/2021, they submitted a folder
of documents, including a copy of the ruling issued in Appeal [Number] Civil
Supreme - initiated by the respondent and rejecting the cassation. The appellant
argues that this ruling, which concluded the case in which they represented the
respondent, constitutes a final judgment. However, the contested ruling failed
to acknowledge or respond to this crucial piece of documented evidence.
Consequently, the appellant argues that the contested ruling not only breached
the documented facts but also displayed deficiencies in reasoning. Therefore,
the appellant seeks a reversal of the contested ruling.
This
objection holds merits, since
is
prescribed, as per the ruling of this court, that the ruling shall incorporate
elements assuring the reader that the court has thoroughly considered the
factual intricacies of the case. Also, the ruling shall reflect the court's
diligent efforts in utilising all available means to unearth the truth therein.
Furthermore,
when either
of the opposing parties raises a defence that, if substantiated, could impact
the formation of the court's opinion and is supported by documentary evidence,
it is imperative for the court to scrutinise this defence in light of the
potential significance of such documents. Failure to conduct a thorough
examination in these circumstances renders the court's ruling susceptible to
being marred by deficiencies in reasoning.
In
accordance with the provisions of law, specifically as articulated in Article 29
of the Law on the Legal Profession, it is mandated that an attorney’s fees
be received in accordance with the terms stipulated in the contract between the
attorney and their client. Nevertheless, the court that heard the case retains
the authority, upon the client's request, to diminish the agreed-upon fees
should they be deemed excessive in relation to the requisite effort exerted and
the resultant benefit to the client. Notably, the fees may not be subject to
reduction if they were agreed upon subsequent to the completion of the legal
services. In instances where there is no written agreement concerning the fees
or the written agreement is deemed null and void, the court that heard the case
is entrusted, in the event of a dispute and upon the plea of either the attorney
or the client, with the responsibility of appraising the attorney's fees in a
manner commensurate with the exerted effort and the benefit realized by the
client. The provision outlined in Article 33 of the same law explicitly dictates
that should a client dismiss their attorney without a valid justification
subsequent to the initiation of the assigned tasks, the client is under an
obligation to remit the complete fees as agreed upon, akin to a scenario where
the attorney had successfully concluded the assigned work for the client's
benefit. In instances where the dismissal occurs before the commencement of the
tasks entrusted to the attorney, the attorney is entitled to fees for the effort
invested in the preparatory phase, provided that such fees do not exceed 25% of
the mutually agreed-upon amount. In cases where there is no agreement on the
fees, the procedure delineated in the third paragraph of Article 29 of the Law
on the Legal Profession shall be adhered to for the estimation of
fees.
Given
the circumstances where the crux of the case hinged upon the request for
attorney’s fees, as stipulated in the contract executed between the
parties, the court was duty-bound to adjudicate on this matter in accordance
with the prescribed rules as outlined above. However, the contested ruling
deviated from this imperative and erroneously based the entitlement to fees on
the ultimate resolution of the case, focusing on the culmination of the effort
expended - the subject matter of the litigation - and ultimately ruled against
accepting the case due to its premature filing. Since the dispute centres around
the effort exerted at any stage of the litigation rather than its conclusion,
the contested ruling is afflicted by an error of application of the law and a
deficiency in reasoning. the ruling shall be reversed, and the case shall be
remanded for further consideration.
Given
the circumstances where the crux of the case hinged upon the request for
attorney’s fees, as stipulated in the contract executed between the
parties, the court was duty-bound to adjudicate on this matter in accordance
with the prescribed rules as outlined above. However, the contested ruling
deviated from this imperative and erroneously based the entitlement to fees on
the ultimate resolution of the case, rather than the effort expended, to become
final. Ultimately, it ruled against accepting the case due to its premature
filing, despite the dispute revolving around the effort exerted at any stage of
the litigation rather than its conclusion. Therefore, the contested ruling is
marred by an error in the application of the law and a deficiency in reasoning.
Consequently, it shall be reversed with remand for further
consideration.