Cyprus Mail
Property

A retrial is a new trial

law

What was previously decided is not taken into account

 

The retrial of a case may be ordered by the Supreme Court in exercising its appellate jurisdiction. The case is then heard from the beginning without the previous trial being taken into account. The litigants are no longer bound by the outcome of the previous trial, which is considered non-existent and the case may be retried either by the same judge or by another judge depending on the order of the Supreme Court.

Once a lawsuit or an application is sent for retrial, the second trial supersedes the first one and any finding from the first trial is ignored. Any issues that have been abandoned or not raised by a party in the first trial may be raised in the second and any existing issues can be abandoned.

The principles governing the retrial of a case de novo, were dealt with by the Supreme Court when examining the appeal of a judgment issued by the Family Court in a decision dated February 15. The appellant raised as grounds for appeal that the Family Court misinterpreted the English case of Bobolas that the parties are not bound by anything previously decided. In particular, the dispute concerned the amount of the monthly instalment which the respondent was ordered to pay to the appellant for the repayment of a judgment debt owed to her in a case of property disputes between ex-spouses.

The appellant did not accept the judgment of the Family Court regarding the amount of the monthly instalment and filed an appeal. The Supreme Court, ordered the retrial of the application, which was heard by the Family Court with a different composition. The court, after hearing witnesses and the respondent, issued its judgment, which did not satisfy the parties.

The appellant filed a new appeal, relying on the above ground and in its reasoning, she accepted that the Bobolas case states that the retrial of a case is a new trial. However, she alleged that the Family Court, after the submissions of her lawyers, should have examined, evaluated and taken into account the respondent’s affidavit in the original application for the determination of their property disputes and those in the “last” application for monthly instalments. She also argued that the court had disregarded a significant amount of money the respondent had.

The Supreme Court in its unanimous decision ruled the ground of the appeal completely unfounded, stating that the Family Court at the beginning of its decision set the background of the case, recording the following: “This application has been brought before me for retrial after an order of the Supreme Court. The retrial is essentially a de novo trial, a trial that starts from the beginning and is completely independent of the previous one. Therefore, the parties are not bound by anything that has been said before”.

The Supreme Court added that the Court set the framework within which it would act based on the principle established by Bobolas. The court essentially formed the position that it would judge and try the case with whatever evidence and testimony was brought before it during the trial which it was adjudicating.

The Supreme Court held that the Family Court assessed the testimony and the evidence brought before it, giving sufficient reasons. Consequently, it considered the relevant ground unfounded and dismissed the appeal.

 

George Coucounis is a lawyer practicing in Larnaca and the founder of George Coucounis LLC, Advocates & Legal Consultants, [email protected]

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