Appeals in Civil Proceedings

Overview

The Bahrain civil court system is comprised of three stages:

1. First instance: cases are heard either in the Lower Court or in the High Court, depending on their subject matter and value (the Lower Court has jurisdiction over civil and commercial claims not exceeding BHD 5,000, and over specific matters listed in Bahrain Decree-Law No. 12/1971 On the Issuance of the Civil and Commercial Procedures Law, as defined below). Both the Lower and the High Court are seated in Manama.
2. Appeal: Lower Court decisions and summary decisions can be appealed to the High Court, while High Court decisions can be appealed to the Court of Appeal, which is also seated in Manama.
3. Cassation: Court of Appeal decisions can be referred to the Court of Cassation, which is also seated in Manama.

This Practice Note provides guidance on the appeal of first instance decisions (i.e., judgments handed down by the Lower Court or by the High Court).

The relevant legislative framework is set out in Title 6, articles 213-228 of Bahrain Decree-Law No. 12/1971, and Bahrain Decree-Law No. 8/1989 On the Issuance of the Court of Cassation Law.

This Practice Note does not cover the parallel jurisdiction of the Bahrain Shariah Courts system, the jurisdiction of the Bahrain Chamber for Dispute Resolution or other specialised commercial courts or the criminal courts, nor other recourses against rulings such as the “objection to judgment by third parties” and the “motion for reconsideration” of judgments. Petitions to the Court of Cassation are briefly touched upon at section 9 of this Practice Note.

Definitions

• CA: refers to the Court of Appeal, which serves as an appeal court to decisions issued by the High Court.
• HC: refers to the Bahrain High Court, which serves both as first instance court over matters not falling under the Lower Court’s jurisdiction, and as an appeal court to decisions issued by the Lower Court.
• LC: refers to the Bahrain Lower Court, a first instance court having jurisdiction over civil and commercial claims not exceeding BHD 5,000, and over specific matters listed in article 8 of Bahrain Decree-Law No. 12/1971.

Practical Guidance

1. Representation of the parties

As a preliminary point, it is important to note that litigating civil matters in the Bahrain courts of all degrees requires representation of the parties by Bahrain-qualified lawyers, in accordance with the requirements set out in Bahrain Decree-Law No. 26/1980 On the Promulgation of the Legal Profession Law.

2. Appeals of first instance decisions

The steps involved in appealing against a first instance decision of the LC and HC are the same.

The guidance below applies to both situations.

3. Decisions which can be appealed

According to article 213 of Bahrain Decree-Law No. 12/1971:

• The general principle is that all first instance judgments can be appealed insofar as they dispose of the merits of the claim, and unless the law states otherwise.
• Final judgments issued by the LC may be appealed if the reason of appeal is a violation of the jurisdiction rules related to public order, an irregularity in the judgment or in the procedures affecting the judgment.

Interim decisions rendered in the course of proceedings, and which do not dispose of the case, cannot be appealed (article 214
of Bahrain Decree-Law No. 12/1971).

4. Appeal period

Pursuant to article 216 of Bahrain Decree-Law No. 12/1971, the appeal period is 45 days from either:

• the date of issue of the judgment; or
• if the losing party does not attend all the hearings of the case, or if, in the event of discontinuance of proceedings, the losing party does not attend all the hearings after resumption of proceedings, from the date of notification of the judgment to the losing party. The notification is made either in person or at the party’s place of residence or elected domicile.

Once the appeal period has lapsed, the parties lose their right to appeal, and the first instance decision becomes final.

For summary judgments, the appeal period is 10 days (article 8 of Bahrain Decree-Law No. 12/1971). As noted above, summary judgments are reviewed by the HC on appeal.

5. How to file an appeal

To file an appeal, the appellant must submit a memorandum of appeal to the Registry of the relevant appeal court (i.e., the HC’s or the CA’s Registry, depending on whether the judge below is the LC or the HC) and pay the appeal fee in accordance with the provisions of Bahrain Decree-Law No. 3/1972 regarding Judicial Fees.

The memorandum of appeal will have to include the parties’ details, the factual background to the dispute, a reference to the appealed judgment and an explanation of the grounds of appeal (article 217-218 of Bahrain Decree-Law No. 12/1971).

6. Object and scope of the appeal

The appeal court will fully reassess both questions of fact and law put before it and will also weigh the parties’ statements of case and evidence filed in the first instance proceedings (article 225 of Bahrain Decree-Law No. 12/1971).

The appeal court will strike out any new claim (i.e., any claim not already put to and adjudicated by the court of first instance) but will entertain new or amended grounds in support of original claims (article 225 of Bahrain Decree-Law No. 12/1971). A reassessment of the valuation of the original claims is also admitted on appeal.

The appeal can be limited to challenging parts of the first instance judgment. If the first judgment contains adverse findings against both parties, each party can file a separate appeal targeting the sections of the judgment that they seek to overturn. The appeal court will either treat each appeal separately or consolidate the two appeals in a single proceeding (article 227 of Bahrain Decree-Law No. 12/1971).

7. Third parties

Non-parties to first instance proceedings lack standing to bring an appeal.

The intervention of third parties in appeal proceedings is limited to situations in which the third party seeks to join one of the parties to the appeal (e.g., on grounds of common interest), or if the appealed judgment can be considered as affecting that third party (article 226 of Bahrain Decree-Law No. 12/1971).

8. Effects of the appeal

For the duration of the appeal period referred to at point 4 above, and for the duration of the appeal proceedings, the first instance decision is not enforceable unless it is a summary decision or it is otherwise provisionally enforceable by law or by decision of the first instance court (see articles 10-12 of Bahrain Decree-Law No. 22/2021 On the Promulgation of the Execution Law in Civil and Commercial Matters).

When it decides on the appeal, the appeal court exercises a wide discretion and can either:

• reject the appeal, thereby affirming the appealed judgment;
• revise the appealed judgment in part; or
• set aside the appealed judgment entirely and issue a ruling disposing of the original claims, whilst referring any new
  ancillary claims dependent on the original claims to the court of first instance for adjudication. Where the appeal court
  sets aside the first instance decision on jurisdictional grounds, it will refer the case to the competent court.

9. Petitioning the Court of Cassation

The Court of Cassation is the highest-ranking jurisdiction in Bahrain. Representation of parties before the Court of Cassation is reserved to lawyers who have been registered on the general roll for more than 8 years or have at least 10 years of experience in practicing law (article 3 of Bahrain Decree-Law No. 8/1989).

The Court of Cassation will not entertain issues of fact and will only review the appeal decision on grounds of alleged violation or misinterpretation of the law, invalidity of the judgment or a defect in the procedure affecting the judgment (article 8 of Bahrain Decree-Law No. 8/1989).

Appealing a decision to the Court of Cassation does not in itself result in a stay of the enforceability of that decision albeit it is open for the Court of Cassation to order the temporary stay of the execution if the applicant requests it (article 10 of Bahrain Decree-Law No. 8/1989).

Comparison with Common Law

Bahrain is a “Civil Law” country and as such some of the features of its legal procedure differ from what is usually seen in Common Law systems.

In Common Law systems, the appeal of judgments and orders (or some categories of judgments and orders) is typically dependent upon the prospective appellant seeking and obtaining a “permission to appeal”.

In England and Wales for instance, under Civil Procedure Rule 52.3 et seq. and save in certain specialist appeals, appellants need to make an application for permission to appeal to the lower court (i.e., the court from whose decision an appeal is brought), and if refused they can then seek permission from the appeal court (i.e., the court to which the appeal is made).

Permission is only granted if:

• the appeal has a real prospect of success, or
• there is some other compelling reason for the appeal to be heard, and
• if the permission relates to a “second appeal” (i.e., from a decision which was itself made on appeal) the additional requirement that it requires the “raising [of] an important point of principle or practice”.

These distinctive features are absent in Bahrain where the right to appeal is not subject to the granting of a prior permission.

Related Content

• Bahrain Decree-Law No. 12/1971 On the Issuance of the Civil and Commercial Procedures Law
• Bahrain Decree-Law No. 8/1989 On the Issuance of the Court of Cassation Law
• Bahrain Decree-Law No. 26/1980 On the Promulgation of the Legal Profession Law
• Bahrain Decree-Law No. 3/1972 regarding Judicial Fees

This article was first published by LexisNexis.