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Tetiana  ZAVARZA,

Listener of the National School of Judges of Ukraine, Candidate of Law

PLENARY POWERS OF COURTS OF APPELLATE INSTANCE IN CASE OF TAKING OF NEW PROOFS OVER PARTIES IN CIVIL CASE

This article is dedicated to the actual question for civil procedure in Ukraine — about power of Court of Appeal. The most part, this question is important for the judges of trial court because they decisions could be overturned. Informed decision of the trial court may be overturned if Court of Appeal get a new proofs from the parties and this evidence is importent for correct resolve these issues. In this situation in civil procedure have to be mechanism that give the trial court chance reconsideration his decision after receiving new proofs.

In article the author tries to demonstrate how this issue is solved in other countries. In particular the author translated decision of England and Wales Court of Appeal that could demonstrate how it works on practice if Court of Appeal get a fresh evidence from the parties.

The Civil procedure code of Ukraine, December 2017, declaim that appellate court can’t order a new trial if he takes new proofs in a civil case. That’s mean that in situation when appellate court takes new proofs the decision of trial court could be overturned because it was made without counting of all facts that is have meaning for case. So the decision of trial court could be overturned even if he couldn’t analyses all circumstances of the case and was thus for reasons beyond his control.

Now then in Ukraine remain situations where the trial court’s judgment that was lawful at the time it was performed could be overturned. That’s mean that we need to change Civil procedure code of Ukraine and give the appeal court power to order a new trial if he takes fresh evidence in a civil case.

Key words: power of Court of Appeal, new proofs, order a new trial, overturned the decision of the trial court.

References

Ley 1/2000, de 7 de enero, de Enjuiciamiento Civil. URL: http://noticias.juridicas.com/base_datos/Privado/l1-2000.l2t3.html#l2t3 (last access: 10.01.2018). Title from the screen.[engl.]

Swiss Civil Procedure Code. URL: https://www.admin.ch/opc/en/classified-compilation/20061121/index.html (last access: 10.01.2018). Title from the screen.[swed.]

Civil Procedure Code. Part 52 – Appeals. URL: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part52#52.11 (last access: 10.01.2018). Title from the screen.[engl.]

Ladd v Marshall [1954]. URL: http://www.refworld.org/pdfid/47fdfb1014.pdf (last access: 10.01.2018). Title from the screen.[engl.]

R v Stolar. Supreme Court of Canada. URL: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/308/index.do (last access: 10.01.2018). Title from the screen.[engl.]

Sase Hiroshi. When the Appellate Court Takes Fresh Evidence in a Civil Case, should the Court Dispose of the Case Immediately or Order a New Trial? 2016. URL: https://tspace.library.utoronto.ca/bitstream/1807/75985/2/Sase_Hiroshi_201611_LLM_thesis.pdf (last access: 10.01.2018). Title from the screen.[engl.]

Jason Rawding – and – Seaga UK Limited. Neutral Citation Number : [2015] EWCA Civ 113Case No : B2/2014/1437. URL:http://www.bailii.org/ew/cases/EWCA/Civ/2015/113.html (last access : 01.02.2018). Title from the screen. [engl.]