Огляд підготовлено Вищою школою адвокатури Національної асоціації адвокатів України.
Failure to inform the court of a change in the place of residence is a reason for dismissing the claim without consideration
📌Ruling of the Supreme Court in the composition of the panel of judges of the Second Judicial Chamber of the Cassation Civil Court dated April 4, 2024 in case No. 686/15042/20
In the case under review, PERSON_1 was repeatedly notified by the court of first instance about the place, day, and time of the hearing at the address indicated by him in the statement of claim. Court summons for the hearings scheduled for January 24, 2023, and February 15, 2023, were returned to the court of first instance with the note ‘addressee absent at the specified address’.
PERSON_1 did not inform the court of a change in his place of residence, which is his procedural duty (part one of Article 131 of the Civil Procedure Code of Ukraine).
In view of the above, the conclusion of the court of first instance, concurred with by the appellate court, regarding the existence of grounds provided for in paragraph 3 of part one of Article 257 of the Civil Procedure Code of Ukraine to dismiss the claim without consideration is correct.
🔗Source: https://reyestr.court.gov.ua/Review/118192984
The court may notify a party to the case of the hearing using mobile communication means by sending text (SMS) messages, but only upon receipt of a written request from such party
📌Ruling of the Supreme Court in the composition of the panel of judges of the Second Judicial Chamber of the Cassation Civil Court dated August 2, 2024 in case No. 761/4187/23
An analysis of the case materials indicates that:
by the ruling of the Shevchenko District Court of Kyiv dated February 27, 2023, a statement of claim was accepted for consideration and civil proceedings were initiated, determining that the case should be heard in the simplified procedure with notification (summons) of the parties, and the court hearing was scheduled for March 30, 2023 at 11:00 a.m.;
on March 30, 2023, the hearing was postponed to May 18, 2023, as notified to the representative of the plaintiff Mamayev D. Y. personally with a signature on the receipt (vol. 1 sheet 101);
on May 18, 2023, the plaintiff and his representative did not appear in court, and a break in the case was announced for June 22, 2023,
on May 22, 2023, a certificate of delivery of an electronic letter was drawn up, namely, a court summons for the hearing on May 22, 2023, was delivered to the recipient at his email address INFORMATION_1 (vol. 2 sheet 233) and a certificate of delivery of a message in the ‘Vaber’ application to the recipient Mamayev D. Y. (vol. 2 sheet 234);
the relevant written request from Mamayev D. Y. for sending text (SMS) messages in the case materials is missing;
under these circumstances, establishing the lack of proper notification of the plaintiff about the court hearing scheduled for June 22, 2023, the appellate court made the correct conclusion about the absence of grounds to dismiss the claim without consideration and duly annulled the ruling of the court of first instance.
🔗Source: https://reyestr.court.gov.ua/Review/120838411
The submission by the plaintiff’s representative of motions to postpone the hearing on July 18, 2023, and September 11, 2023 (at 13:48) indicates the representative’s awareness of the date, time, and place of the court hearing
📌Ruling of the Supreme Court in the composition of the panel of judges of the First Judicial Chamber of the Cassation Civil Court dated July 3, 2024 in case No. 459/550/23
On July 18, 2023, the representative of PJSC CB ‘PrivatBank’ lawyer Budionny V. S. filed a motion to postpone the hearing due to the representative’s engagement in another case; however, apart from the order to provide legal assistance confirming the representative’s authority, no evidence of the representative’s participation in another case is contained in the case materials. No statements were made about the hearing in his absence.
In the court session scheduled for 11:00 a.m. on September 11, 2023, the plaintiff’s representative did not appear again. The motion to postpone the hearing scheduled for 11:00 a.m. on September 11, 2023, due to the representative’s vacation, was received by the court at 1:48 p.m. on September 11, 2023. The said motion was signed by the legal consultant Sinchuk E. A., who acted on the basis of a power of attorney. However, there was no information about which of the three representatives, who had previously participated in the case, was on vacation, nor were there any added proofs to confirm this.
During the court session, the defendant’s representative – PERSON_6 requested to dismiss the claim without consideration or to consider the case without the plaintiff’s participation.
Taking into account the above, the panel of judges agrees with the courts’ conclusions that the case files do not contain requests from the plaintiff’s representative for the consideration of the case in his absence, the hearing was adjourned at the request of the plaintiff’s representative, who was duly informed of the scheduling, date, and time of the hearing, therefore, the court of first instance, with the concurrence of the appellate court, lawfully dismissed the claim without consideration under paragraph 3 of part one of Article 257 of the Civil Procedure Code of Ukraine due to the plaintiff’s repeated non-appearance at the court hearing.
The arguments of the appellant in the cassation appeal that the court of appeal did not verify and examine whether the court of first instance notified the plaintiff of the date, time, and place of the court hearings scheduled for July 18, 2023, and September 11, 2023, are rejected by the panel of judges, as the submissions by the plaintiff’s representative to postpone the hearing on July 18, 2023, and September 11, 2023 (at 13:48) indicate the representative’s awareness of the date, time, and place of the court hearing.
Furthermore, the panel of judges notes that the plaintiff’s representative who filed the claim to the court – Bezmenko M. Y., the response to the application for the consequences of the expiration of the statute of limitations, the reply to the response, and the objections were submitted by the plaintiff’s representative – Yermolov Y. M., the motion to postpone the hearing on July 18, 2023, was filed by the plaintiff’s representative – Budionny V. S., the motion to postpone the hearing on September 11, 2023, was filed by the plaintiff’s representative – Sinchuk E. A., which indicates both the plaintiff’s and his representatives’ awareness of the consideration of the case and the presence of several representatives authorized to represent the plaintiff’s interests in court hearings, raising doubts about the plaintiff’s conduct.
The appellant’s reference to the court initiating the dismissal of the claim without consideration when it had the opportunity to consider the case in the absence of the plaintiff goes beyond the principle of the adversarial nature of the judicial process, limits the right to defense, and constitutes a deviation of the court from performing its main function – justice, is unfounded, as the court’s right to dismiss the claim arises in the presence of two proper notifications to the plaintiff of the time and place of the case hearing, the plaintiff’s double non-appearance directly at the court hearing, and the absence of his request for the consideration of the case in his absence. Additionally, the defendant’s representative also insisted on leaving the claim without consideration.
🔗Source: https://reyestr.court.gov.ua/Review/120207316
The case files lack a court summons for the appearance of a lawyer in the court’s Automated Document Flow System, preventing the automatic sending to the Electronic Cabinet or official email address of such a participant in the court process of a notification of the case hearing using the Unified Judicial Information and Telecommunications System
📌Ruling of the Supreme Court in the composition of the panel of judges of the Third Judicial Chamber of the Cassation Civil Court dated September 2, 2024 in case No. 367/7500/20
Having established that the plaintiff PERSON_1 and his representative were not duly and properly notified of the court hearings scheduled for November 2, 2023, and January 24, 2024, the appellate court reached a well-founded conclusion that the court of first instance was deprived of the procedural opportunity to dismiss the statement of claim without consideration under paragraph 3 of part one of Article 257 of the Civil Procedure Code of Ukraine.
The arguments in the cassation appeal that Article 223 of the Civil Procedure Code of Ukraine does not provide a basis for postponing the court session as the notification of the parties to the case about the consequences of the court’s consideration of the motion to suspend the proceedings in the case do not affect the correctness of the conclusions of the appellate court since there is no evidence in the case materials of the proper notification of the plaintiff about the date and time of the court hearing on November 2, 2023, and therefore, there are no signs of the plaintiff’s repeated non-appearance at the court hearing.
The arguments in the cassation appeal that the plaintiff’s representative is a lawyer and therefore has a registered cabinet in the ‘Electronic Court’ subsystem, where all information and documents in the case were received, are not worthy of attention, as there is no court summons for the appearance of the lawyer Shevchenko N. V. in the court’s Automated Document Flow System for the court hearing on November 2, 2023, preventing the automatic sending to the Electronic Cabinet or official email address of such a participant in the court process of a notification of the case hearing using the Unified Judicial Information and Telecommunications System.
Based on the above, the panel of judges concluded that the arguments in the cassation appeal do not refute the conclusions of the appellate court regarding the existence of grounds for overturning the ruling of the court of first instance to dismiss the claim without consideration under paragraph 3 of part one of Article 257 of the Civil Procedure Code of Ukraine and for referring the case for further consideration to the court of first instance, thus, they do not provide a basis to consider the application of procedural law by the appellate court in the issuance of the challenged court decision as incorrect.