Grounds for reviewing court decisions based on newly discovered circumstances: the Supreme Court supported the conclusion of the KGS

Yes, the court's decision, resolution, or resolution, which ended the consideration of the case and entered into force, may be revised based on newly discovered circumstances. The grounds for such a review are, in particular, circumstances essential to the case, which were not established by the court and were not and could not be known to the person making the application at the time of the case review (part one and paragraph 1 of part two of Article 423 of the Civil Procedure Code of Ukraine) . Precepts similar in content are found in part one and point 1 of part two of Article 320 of the Commercial Procedure Code of Ukraine, part one and point 1 of part two of Article 361 of the Code of Administrative Procedure of Ukraine.

In this case, the subject of evidence from the plaintiff's side concerned, in particular, the substantiation of the lack of authority to conclude a sales contract in the representative who acted on behalf of the plaintiff, as well as the forgery of the power of attorney on the basis of which this person signed the specified contract. During the initial consideration of the case, the courts pointed out that the plaintiff did not prove the specified circumstances with proper and admissible evidence, and therefore refused to grant the claim.

The plaintiff decided to refute the facts underlying the court decisions by submitting the decision of the Czech court adopted in this case after its consideration in the appellate instance, in which, according to him, the facts of the fictitiousness of the power of attorney and the absence of the representative's authority to conclude on behalf of the plaintiff were established sales contract. The plaintiff believed that these facts existed at the time of the case. But he noted that at that time they were not known to him, but became known only from the day the decision of the Czech court entered into force. When the courts of the first appellate instance made a decision in the case during its initial review, they did not, based on the evidence submitted by the plaintiff, establish the facts of forgery of the power of attorney and the representative's lack of authority to conclude a sales contract on behalf of the plaintiff. However, for the plaintiff, these facts were already known from the moment of the appeal to the court and served as the main arguments for substantiating the claim to invalidate the sales contract. This was confirmed by the courts of both instances during the consideration of the application for review of the court decision based on newly discovered circumstances.

Therefore, there is no reason to believe that the facts of the forgery of the power of attorney and the representative's lack of authority to conclude a sales contract, which, according to the plaintiff, were established by the Czech court after the case was resolved in the courts of two instances in Ukraine, became known to the plaintiff only after the decisions of these courts and entry into force of the decision of the Czech court.

Therefore, when considering the application for review of the court decision based on newly discovered circumstances, the courts of two instances correctly indicated that the circumstances that the plaintiff considers to be newly discovered (forgery of the power of attorney and the representative's lack of authority to conclude a sales contract on behalf of the plaintiff) were already known to him on the date of filing the claim. That is, they are not newly discovered. Therefore, the decision of the Czech court is not evidence that confirms the newly discovered circumstances, but could be evidence of the circumstances that became the basis of the lawsuit. However, this evidence did not exist during the initial consideration of the case in the courts of the first and appellate instances. And in the procedure for revising the court decision based on newly discovered circumstances, the court does not examine new evidence to confirm those circumstances that served as grounds for the lawsuit and were checked by the courts during the initial hearing of the case.

In the resolution dated March 17, 2021, the Supreme Court as part of the panel of judges of the Third Judicial Chamber of the Civil Court of Cassation indicated the need to deviate from the conclusion formulated in the resolutions of the Supreme Court as part of the panel of judges of the Commercial Court of Cassation, regarding newly discovered circumstances, in particular, in the resolution of July 2 2018 in case No. 922/3388/15, where due to the existence of a debt transfer agreement, the court terminated the proceedings in the case regarding the claims and noted that the newly discovered circumstance is not an event in the form of a court decision to invalidate such an agreement, but a circumstance , which the court established in this decision, that is, the invalidity of the contract on the transfer of the debt was determined. Such a circumstance existed at the time the case was being considered, could not have been known to the plaintiff at the time, and is essential for the consideration of the case, because its consideration by the court would have resulted in the adoption of a different court decision than the one it adopted.

A similar conclusion regarding the newly discovered circumstances, formulated by the joint chamber of the Commercial Court of Cassation as part of the Supreme Court in the ruling dated August 3, 2018 in case No. 19/5009/1481/11 and by the Commercial Court of Cassation as part of the Supreme Court in the ruling dated November 12, 2020 in case No. 910/23892/16.

The Grand Chamber of the Supreme Court believes that since the newly discovered circumstance is not the fact of the adoption of a court decision, not this decision itself as a legal fact, but the circumstance established by the court in it, there is no reason to deviate from the stated conclusions.

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