Memorandum Of Defense – A Defendant’s Guide To Fighting A Court Case

If you have never been involved in a court proceeding in the UAE, chances are that you may not be familiar with the phrase "memorandum of defense". However, it may be relevant to know this term and the process of litigation before the UAE courts if you are a resident of UAE or generally curious to know how the courts work in the UAE. Read below to know more.

Background

The procedure for filing of claim, its defence, judgement and appeals for civil matters is set out in the Federal Law No 11 of 1992 on Civil Procedure (Civil Procedure Law), read with the Cabinet Decision No 57 of 2018, as amended (Cabinet Decision).

All court proceedings including documents submission are carried out in Arabic and any document that is in foreign language would need to be translated and legalized in Arabic for it to be submitted before the courts.

Filing a Claim

Filing a claim is the first step to initiate court proceedings. The court in which the claim is first filed is the Court of First Instance. The lawsuit is filed by the applicant by submitting a statement of claim to the case management office. The statement of claim is the key document which contains all the relevant information about the legal dispute.

In accordance with Article 16 of the Cabinet Decision, the statement of claim would need to contain the plaintiff’s name, identification documents, profession, occupation, domicile, workplace, phone number, name and details of the representative. The statement of claim should also contain details of the defendant, the date of filing the statement of claim, the subject matter of the lawsuit, the demands and grounds for the demands, the court before which the lawsuit is filed and the signatures of the plaintiff or his representative.

Along with the statement of claim, all supporting documents including any expert reports should be submitted under Article 20 of the Cabinet Decision. Once the fee is collected, the case management office will record the lawsuit in the register under Article 19 of the Cabinet Decision.

Notification to the Defendant

Once the statement of claim is registered, it is served to the defendant. The notice may be served to the defendant through any of the following methods, as set out in Article 6 of the Cabinet Decision:

1. In person at his domicile or place of residence. If case the defendant refuses to receive the notice, notice would be deemed to have been served on him.
2. Through voice or video recorded calls, SMS, email, smart applications, fax or any other means of modern technology.
3. At his elected domicile or his workplace.

In case the notice cannot be served on the defendant through any of the above methods, the notice will be published on the website of the court or in a daily Arabic newspaper and another newspaper in foreign language if the defendant is a foreigner.

Submission of Memorandum of Defence

Once the defendant has been notified, he is required to submit a memorandum of defence, which sets out the defence against the claim made by the applicant. The memorandum of defence can also be accompanied by all supporting documents which are relevant to support the defence.

At this stage, it would be important for the defendant to hire a lawyer who would represent him before the courts. For this purpose, a power of attorney would have to be signed and issued in favour of the lawyer.

On the date of the hearing of the lawsuit, the parties can appear either in person or through their legal representatives. At this hearing, the parties may submit any additional documents which they were not able to previously submit before the case management office under Article 35 of the Cabinet Decision. The court may reject the new documents if it finds that the documents could have been submitted before.

Pleading & Judgement

The pleadings will be held in public in accordance with Article 38 of the Cabinet Decision. The plaintiff will first present its case and submit the corroborating evidence. The defendant would then present its defence and submit the relevant evidence. In commercial matters, evidence is usually submitted through documents.

Once all parties are heard and evidence submitted, the courts will adjudicate the case and issue the judgement. Under Articles 50 and 51 of the Cabinet Decision, all judgements will include the grounds on which it is based, mention the court which issued it, the date and venue of the issuance, type of case and names of the judges who heard the matter. The judgement should also contain an overview of the matter, the demands, defence and the enacting terms of the decision, amongst other matters.

Next Steps

Once a judgment has been pronounced, the party who wishes to execute it will file a case before the execution judge for execution after the appeal period has elapsed. An appeal may also be filed against the judgment, unless the person has accepted the sentence expressly or implicitly. Under Article 159 of the Civil Procedure Law, appeals are filed with the Court of Appeal within a period of 30 days from the date of issuance of judgement, unless a statute stipulates otherwise.