Introduction

- The concept of limitation periods has been principally adopted by the UAE legislator from the doctrine or the fiqh of two (2) Islamic scholars, namely “ Al Maliki “ and “ Al Hanafi “, considering that the UAE constitution provides in its Article seven that the Islamic Shari’ah is the principal source of legislation in the UAE.

- The aforementioned scholars have justified the concept of limitation periods and the non-admissibility of claims after the passage of such specified limitation periods, on the basis that due to such passage of time, the collection of evidence by the debtor to prove becomes problematic and troublesome resulting in the non-feasibility of the debtor to prove that he settled the debt for reasons such as (without limitation) the witnesses’ memory not being intact or the witnesses passing away etc. Further, the passage of certain time may also diminish the value of the evidence, making it more susceptible to challenge.

- The scholars also added that the creditor’s omission/ negligence in submitting his claim within a reasonable and justified time period, without any lawful justification is an indication that his claim may not be valid/ true since the creditor was capable of submitting his claim but chose not to do so.

- The general purpose and aim behind the concept of limitation periods was to ensure the stability of transactions in the economic environment in Islamic communities. The UAE legislator has applied the aforesaid concept over many transactions and conducts whether under general law, e.g. UAE Federal Law No. 5 of 1985 on Civil Transactions Law (the “Civil Code”) or under a specific law that regulates specific transactions of a specific nature, e.g. UAE Federal Law No. 26 of 1981 on Maritime Commercial Law.

Application under tortious liability

- In the context of the rules governing tortious liability under the UAE legal system, it is observed that the UAE legislator has implemented the concept of “the non-admissibility of claims after the passage of certain time period” and referenced the same as “ Time Bar “. The same can be witnessed as codified under Article 298 of the Civil Code which identifies the relevant time bar which is applicable in relation to action/ claim for damages arising out of “unlawful acts” (torts). It states:

“1. An action for damages arising from an unlawful act is barred by limitation after the lapse of three years from the day the victim had knowledge of the injury and of the identity of the person who was responsible thereof.

2. If, however, the claim arose out of a criminal offence and the hearing of the penal action is still pending, after the lapse of the periods mentioned in the preceding paragraph, the action for damages may still be heard.

3. An action for damages is, in any case, barred by limitation after the lapse of fifteen years following the occurrence of the prejudicial act.”

- The above-mentioned Article 298(1) of the Civil Code states that a claim arising out of a tortious act shall be time-barred after the lapse of three (3) years from the day that the victim became aware of the following:

a. The knowledge of the injury; and

b. The identity of the person responsible thereof.

- Hence, it becomes imperative to understand the criteria of the establishment of such “awareness” or “knowledge” to be able to understand the extent or scope of application of the stipulated time bar. The Dubai Court of Cassation explained “knowledge” in its judgment rendered in DCC 456/2021, wherein it was stated that:

“What was meant by knowledge according to this text - and according to what was decided by the Court - was the actual knowledge of the damage and the person responsible for it. The lapse of this period from the day of this knowledge included a presumption that the injured party had waived the right to compensation imposed by the law, which entailed not hearing the compensation claim with the lapse of the period. The determination of the day of this knowledge and the person responsible for it was a matter of facts subject to the discretion of the Trial Court without supervision by the Court of Cassation, provided that it based its judgment on sound grounds.”

- It was further stated in the judgment issued by the Dubai Court of Cassation in DCC 106/2008:

“The knowledge of one of these two elements without the other does not open the time of validity of the period specified by law. These two elements must be available together so the calculation of the scheduled date for not hearing the case can be started”.

- Based on the above, it can be observed that under UAE laws, generally speaking, a claim for any tortious claim should be brought within three (3) years from the date that the victim became aware of both the items identified in the discussion above. Notwithstanding the same, please note that this prescription period identified in Article 298(1) of the Civil Code is without prejudice to the prescription period identified in aforementioned Article 298(3) of the Civil Code, which states a claim for damages for tortious actions shall, in any event, be time-barred after the expiry of fifteen (15) years from the date that the relevant tortious act occurred.

Exceptional rules

- While the rationale of the Islamic scholars “Al Maliki” and “Al Hanafi” (whose concepts were relied on by the UAE legislator) was to afford adequate protection to the tortfeasor by codifying the concept of time bar under the UAE legislation, it is also important to highlight that they also took into consideration rules that are in favor of the victim/ injured person in order to ensure and secure a balance between the rights of both parties involved. Hence, the UAE legal system has adopted two principles that shall be

considered while determining the validity of any time bar plea raised by the tortfeasor as discussed below.

- The first exceptional rule has been provided by the virtue of Article 298(2) of the Civil Code which is reiterated herein below for the purposes of easy reference:

“If, however, the claim arose out of a criminal offence and the hearing of the penal action is still pending, after the lapse of the periods mentioned in the preceding paragraph, the action for damages may still be heard.”

- The abovementioned Article 298(2) of the Civil Code states that in the event the civil claim for damages arose out of a tortious act which may also be considered a criminal offense, then in such an event, such civil claim for damages may be filed anytime within the prescribed time limit of the subject criminal offence. This was confirmed in the judgment rendered in Dubai Court of Cassation – Hearing dated 14-01-2007 – Cassation 158-2006 Civil, which stated:

“If the illegal act constitutes a crime, which entails the establishment of a criminal case in addition to the civil action for compensation, the civil action does not lapse until the criminal action is extinguished. If the two lawsuits are separated and the injured person chooses the civil path rather than the criminal one to claim compensation for the damage resulting from the crime, the validity of the period of non-hearing stipulated in Article 298 mentioned above for him shall stand as long as the right to file, initiate or proceed with the criminal case remains in place.”

- Hence, a determination of whether the tort constitutes a corresponding criminal offence under the UAE criminal code is requisite to understand the applicability of the relevant prescription period applicable on the same, pursuant to Article 298(2) of the Civil Code. In this regard, the assessment of whether the committed torts may also be classified as a corresponding criminal offence under the UAE law, shall be by reference to the relevant

provisions under UAE Criminal Code. Once the UAE Civil Courts identify the tortious action as a penalized criminal offense, then Article 20 of Federal Law No. 35 of 1992 (the “Criminal Procedures Law”) shall be taken in consideration when determining any time bar plea raised by the tortfeasor, which is summarized as follows:

a. In relation to felonies (other than the punitive offences (Kassas), diya (blood money), and the felonies punished by death sentence or life imprisonment), twenty (20) years commencing from the date of the perpetration of the crime;

b. In relation to misdemeanors, five (5) years commencing from the date of the perpetration of the crime; and

c. In relation to violations, one (1) year commencing from the date of the perpetration of the crime.

- The second exceptional rule has been established by the virtue of Article 481 of the Civil Code states:

“Prescription barring the hearing of a case is suspended whenever there is a lawful excuse preventing claim of the right. The period within which the excuse still exists shall not be computed as part of the prescribed period.”

- The consideration and decision of what constitutes a “lawful/legitimate excuse” is a matter that rests solely at the discretion of a trial judge, who shall make an evaluation based on all the surrounding facts, information, documentation, and circumstances of the matter. In this regard, please take note of the judgment rendered in Judgment of the Court of Cassation - Dubai on 17-12-2014 In Appeal No. 2014/138 Civil Appeal, wherein it was stated:

“The decision in the judgment of this court is that the meaning of Article 481 of the Civil Transactions Law is that the legislator has generally stipulated that the passage of time that prevents hearing the case should be suspended whenever there is an impediment that makes it impossible for the creditor to claim his right in the appropriate time. The duration of the impediment is not counted within the legally prescribed period. The impediments were not mentioned exclusively. Rather, the ruling was generalized in order to conform to what the act requires. In application of this ruling, the passage of time stops, even if this impediment is material, legal, or moral, and whether it is due to considerations related to the person of the creditor, such as lack of capacity, forced absence, or force majeure such as war or sedition. Or the link between the civil lawsuit and the criminal lawsuit, or the relationship between

relatives, whatever the degree of kinship, as it was a close relationship and was accompanied by circumstances that confirm the meaning of the prohibition, such as the relationship between the husband and wife as long as the marriage remained, and between the origins and descendants as long as they survived.”

- Based on the above-mentioned judgment, it can be seen the UAE Courts identify a “lawful/ legitimate excuse” as a circumstance that makes it impossible for the relevant claimant to initiate proceedings against the defendant within the stipulated suspension period. Such a circumstance would suspend/ stop the time from running from the date of the materialization of such “lawful/ legitimate excuse” until such time that such “lawful/ legitimate excuse” does not exist or the relevant proceedings are initiated by the claimant. The determination of what constitutes a “lawful/ legitimate excuse” shall vary on a case-to-case basis and shall fall squarely within the discretion of the UAE Courts.

Closing comments

- In light of the above discussions, the time bar under tortious liability, and in general, becomes a critical rule that, if used, might prove to be a turning point in disputes or compensation claims. It is always recommended that both the victim and the tortfeasor carefully investigate all aspects and circumstances surrounding the relevant time bar rules, as the court’s acceptance to any validly raised plea might lead to the nonadmissibility of the subject claim.

Author: Ahmed Elmahdy