Thursday, April 21, 2011

Procedures of the Omani Courts

The below article was featured in

People often ask me about the various stages of an Omani court case.

They usually begin with a statement of claim filed at the Primary Court.

The Claimant grants a power of attorney in favour of their lawyer so that the latter can file the case.

The power of attorney needs to be signed in front of a Ministry of Justice notary.

The Court staff usually want to see - on the statement of claim - the exact physical location details of the defendant's premises.

It therefore makes sense to always obtain the full physical location details of the parties with whom you contract, including your employees, right at the start of a relationship.

The court serves the statement of claim on the defendant and also sets a date for the first hearing.

It is quite common for the defendant's lawyer to attend the first hearing and request an adjournment. The Courts normally grant such an adjournment, especially if the defendant hasn't at that point provided a power of attorney to its lawyer.

When, later, the defendant's defence is filed, it is important that the document should include any procedural defences. For instance, the defendant may allege that the claim is time-barred or that the Courts lack jurisdiction owing to an arbitration clause in the contract. These procedural arguments must always be raised by the defendant in the first court submission lodged on its behalf (ie, in the Defence).

The Primary Court usually orders the Claimant to file a written reply in response to the defendant's Defence.

Soon after that, the Primary Court takes a view on whether or not to appoint an expert to assess the case.

The expert is normally working in the private sector and receives a mission letter from the court telling him the scope of work to be performed.

The expert will normally then hold separate meetings with the claimant and defendant, who can also bring their lawyers to such meetings.

Some experts ask many questions and others prefer to hear a verbal explanation of the litigant party's position.

My view is that lawyers should always be involved in helping their clients prepare for meetings with experts. I also firmly believe that the lawyers should be present at all times when discussions are being held by the expert with each litigant party. This strategy best protects the client and also ensures that they have meaningful back-up when the expert talks about any legal issues.

Also, the lawyer should be working hard on the client's behalf and should help in collating all necessary documents so that the entire scenario is explained in full and accurately to the expert.

The lawyer should also be ensuring that the client will be able to answer any and all questions which the expert may pose.

The lawyer's role, in part, is therefore to help the client explain their position eloquently to the expert, with proper documentary evidence which leaves the expert feeling that all his concerns and questions have been answered.

It is all too easy for an expert to reject an argument if the required paperwork is not provided.

Ultimately, the expert files his report at court, with the claimant and defendant receiving copies.

The Primary Court normally affords each litigant party the right to file a submission, commenting on the expert's report.

The Primary Court, having seen those submissions, may order the expert to provide an additional report, which should address all the concerns about the first report which have been raised.

Sometimes, the Primary Court agrees to appoint another expert if one party is unhappy with the first expert.

But usually the Primary Court reaches its own judgment decision after one expert has filed two reports.

It is not a fait accompli that the Court will agree with the expert whom they have appointed.

It is the lawyer's job to continue to file robust, convincing and persuasive submissions even if the expert's findings are in favour of the other party. This is especially true as the Court may agree that the expert is wrong.

Once a Primary Court judgment is pronounced orally at a hearing, each party has 30 days in which to file an appeal.

During those 30 days, the lawyer can first peruse the court file to see the draft Primary Court judgment and, after that, the written Primary Court judgment will become available.

Any appeal filed with the Appeal Court should document any and all alleged defects in the Primary Court's analysis and the expert's reasoning.

The Appeal Court has the right to appoint one or more additional experts to investigate the issues in dispute.

Once the Appeal Court orally pronounces its judgment at a hearing, each party has 40 days to file an appeal to Oman's third and final tier of justice, the Supreme Court.

It is very rare to have any hearings in the Supreme Court. This is partly because the Supreme Court looks at matters of law only, and is not designed to look at evidential issues.

The Supreme Court, once it has its judgment ready, normally calls both parties to court to hear their judgment. A Supreme Court judgment cannot be appealed.

Sometimes the Supreme Court refers the case back to a different panel of the Appeal Court. In such scenarios, the Supreme Court instructs the Appeal Court to look at the matter again in the context of the Supreme Court's instructions.

So, it is possible for a case to be the subject of two Supreme Court judgments - but the Supreme Court will only once refer the case backwards to the Appeal Court.

This article has hopefully given you a brief but helpful "helicopter view" of the Omani court system.

At times, litigation can be frenetic and it is always best to obtain legal advice long before a dispute arises. In this way, many court cases could be avoided.

-James Harbirdge, Partner (Oman)