Tetyana Lezhukh , lawyer, teacher, and founder of the “Young Lawyer School” project, spoke about the practical aspects of drafting a cassation appeal in civil proceedings during an event to improve the professional level of lawyers, which took place at the NAAU Higher School of Advocacy.
The lecturer, together with the participants, analyzed in detail the practical aspects of drafting a cassation appeal in civil proceedings, namely:
- 1. Requirements for a cassation appeal under the Code of Civil Procedure.
- 2. Typical errors when drafting a cassation appeal.
- 3. Limits of review of the case by the court of cassation.
- 4. Appealing decisions in cassation proceedings.
- 5. Legal techniques for presenting effective cassation appeals.
- 6. How to save 20% on court fees
Within the framework of the characteristics of a cassation appeal in civil proceedings, the following is emphasized:
1. Requirements for a cassation appeal under the Code of Civil Procedure
A cassation appeal is filed directly with the court of cassation.
The cassation appeal must state:
1) name of the court to which the complaint is filed;
2) full name (for legal entities) or name (surname, first name and patronymic) (for individuals) of the person filing the cassation appeal, its location (for legal entities) or place of residence or stay (for individuals), postal code, identification code of the legal entity in the Unified State Register of Enterprises and Organizations of Ukraine, registration number of the taxpayer’s registration card (for individuals) if available or passport number and series (for individuals – citizens of Ukraine), communication means numbers, e-mail address (if available), information on the presence or absence of an electronic account;
3) full name (for legal entities) or name (surname, first name and patronymic) (for individuals) of other participants in the case, their location (for legal entities) or place of residence or stay (for individuals);
4) the decision (resolution) being appealed;
5) the ground(s) on which the cassation appeal is filed, with a definition of the ground(s) provided for in Article 389 of this Code.
In the event of filing a cassation appeal on the basis of paragraph 1 of part two of Article 389 of this Code, the cassation appeal shall indicate the resolution of the Supreme Court, which sets out the conclusion on the application of the rule of law in similar legal relations, which was not taken into account in the contested court decision.
In the event of filing a cassation appeal on the basis of paragraph 2 of part two of Article 389 of this Code, the cassation appeal shall state the justification for the need to depart from the conclusion on the application of the rule of law in similar legal relations set forth in the Supreme Court’s resolution.
In the event of filing a cassation appeal against a court decision specified in paragraphs 2 and 3 of part one of Article 389 of this Code, the cassation appeal shall state the justification for the incorrect application of the norms of substantive law or violation of the norms of procedural law that led to the adoption of an illegal court decision(s);
6) the petition of the person filing the complaint;
7) a list of written materials attached to the complaint;
8) date of receipt of a copy of the contested appellate court decision.
The cassation appeal is signed by the person filing it or a representative of such person.
A power of attorney or other document certifying the authority of the representative must be attached to the cassation appeal filed by a representative.
2. Typical errors when drafting a cassation appeal
Typical errors in the content of an appeal:
- incorrectly selected grounds for cassation appeal of a court decision;
- chaotic presentation of circumstances;
- incorrectly placed accents in the complaint;
- lack of a developed counter-strategy;
- absence of a request for renewal of the time limits for appeal;
- lack of an agreed legal position with the client (if necessary).
3. Limits of review of the case by the cassation court
When reviewing court decisions in cassation proceedings, the court of cassation, within the framework of the arguments and claims of the cassation appeal that became the basis for opening cassation proceedings, checks the correctness of the application by the court of first or appellate instance of the norms of substantive or procedural law and cannot establish or (and) consider as proven circumstances that were not established in the decision or rejected by it, decide on the reliability or unreliability of a particular piece of evidence, or on the superiority of some evidence over others.
The court of cassation reviews the legality of court decisions only within the limits of the claims filed in the court of first instance.
The court is not limited by the arguments and requirements of the cassation appeal if, during the consideration of the case, a violation of the norms of procedural law provided for in paragraphs 1 , 3 , 4 , 8 of part one of Article 411, part two of Article 414 of this Code is discovered, as well as if it is necessary to take into account the conclusion on the application of the norms of law set out in the resolution of the Supreme Court after the filing of the cassation appeal.
4. Appealing decisions in cassation proceedings
Regardless of the validity of the reasons for missing the deadline for cassation appeal, the court of cassation instance refuses to open cassation proceedings if the cassation appeal is filed after the expiration of one year from the date of the full court decision, except in the following cases:
1) filing a cassation appeal by a person who was not notified of the consideration of the case or was not involved in its participation, if the court has made a decision on his rights, freedoms, interests and (or) obligations;
2) missing the deadline for cassation appeal due to force majeure circumstances.
In the event of an appeal against a ruling (except for a ruling that concluded the case), the court may declare the cassation appeal unfounded and refuse to open cassation proceedings if the correct application of the rule of law is obvious and does not raise reasonable doubts as to its application or interpretation.
The decision to refuse to open cassation proceedings must contain the reasons from which the court concluded that there are no grounds for opening cassation proceedings.
The court of cassation instance shall issue a ruling on the initiation of proceedings in the case or on the refusal to initiate cassation proceedings no later than twenty days from the date of receipt of the cassation appeal or from the date of expiration of the period for eliminating deficiencies.
A copy of the decision refusing to open cassation proceedings, together with the materials attached to the complaint, shall be sent to the person who filed the cassation complaint, and a copy of the cassation complaint shall remain with the court of cassation instance.
Jurisprudence:
- If the cassation appeal challenges the ruling of the court of first instance on the closure of the proceedings in the case in connection with the approval of the settlement agreement, after its review in the appeal procedure, such a cassation appeal is a cassation appeal against the ruling on the closure of the proceedings in the case – in terms of its conclusions regarding the presence of grounds for the closure of the proceedings in the case in accordance with Clause 5 of Part One of Article 255 of the CPC of Ukraine in connection with the approval of the settlement agreement, which in accordance with Clause 15 of Part One of Article 353 and Clause 2 of Part One of Article 389 of the CPC of Ukraine is subject to cassation appeal.(Resolution of the Central Judicial Council of the Supreme Court in case No. 185/8179/22 dated 11/27/2024).
- Digression! In cassation proceedings, court decisions of the court of first instance in their entirety (except for court decisions specified in part three of Article 389 of the Code of Civil Procedure of Ukraine), or court decisions in that part that was the subject of review in the appeal procedure, regardless of the complaint of which participant in the legal proceedings they were reviewed, may be appealed.
If the first instance court decision or part thereof was not reviewed by the appellate court, the provisions of paragraph 1 of part one of Article 389 of the Code of Civil Procedure of Ukraine exclude the possibility of a cassation appeal of such a decision or the relevant part thereof.
The Grand Chamber of the Supreme Court departed from the legal conclusion regarding the application of Article 389 of the Civil Procedure Code of Ukraine, set out in the decisions of the Civil Court of Cassation dated February 14, 2024 in case No. 753/405/20, February 16, 2024 in case No. 653/790/20, in which the Court of Cassation rejected the possibility of cassation appeal of a court decision by a person who did not appeal it in the appeal procedure, even provided that this decision was reviewed on its merits in full upon the appeal of another participant in the legal proceedings. (Resolution of the Grand Chamber of the Supreme Court dated May 22, 2024 in case No. 227/2301/21)
5. Legal techniques for presenting effective cassation appeals
What should be considered when filing a cassation appeal:
- compliance with the appeal deadlines / availability of a request for renewal of the deadlines with the provision of evidence of the validity of the reasons for missing the deadline;
- clearly formulate the grounds for the cassation appeal and ensure that the stated grounds correspond to the justification provided;
- be particularly careful in substantiating the cassation appeal in cases that were considered in simplified proceedings;
- It is worth explaining to the client the risks and prospects of filing a cassation appeal.
6. How to save 20% on court fees
In accordance with Part 3 of Article 4 of the Law of Ukraine “On Court Fees”, there is an opportunity to reduce the amount of the court fee by 20% if a procedural document is submitted in electronic form.
Thus, if the cassation appeal, as well as other documents specified in Part 2 of Article 4 of the Law, are submitted to the court in electronic form, then a coefficient of 0.8 is applied to the court fee rate. This means that instead of 100% of the court fee, you pay only 80% of the established amount.
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