14.03.2022
What was decided before is not taken into account.
A retrial may be ordered by the Supreme Court in the exercise of its appellate jurisdiction. The case is then heard from the beginning without regard to the previous trial. The parties are no longer bound by the results of the previous litigation, which is considered defunct, and the case may be retried by the same judge or a different judge depending on the Supreme Court’s ruling.
Once a claim or application is sent for retrial, the second trial supersedes the first, and any findings from the first trial are ignored. Any issues that are waived or not raised by a party in the first trial may be raised in the second trial and any existing issues may be dropped.
The principles of de novo retrial were considered by the Supreme Court in its appeal against the decision of the Family Court in the February 15 decision. The Bobolas case in England that the parties are not bound by anything previously decided. In particular, the dispute concerned the amount of the monthly payment that the defendant was obliged to pay to the plaintiff in repayment of the debt owed to her by a court decision in the case of property disputes between former spouses.
The applicant disagreed with the decision of the Family Court regarding the amount of the monthly payment and filed an appeal. The Supreme Court ordered a retrial of the application, which was considered by the Family Court in a different composition.The court, after hearing the witnesses and the defendant, issued a decision that did not satisfy the parties.
The applicant filed a new appeal on the above ground, and in her reasoning she agreed that the Bobolas case states that the retrial constitutes a new trial. However, she argued that the family court, following the submissions of her lawyers, should have examined, assessed and taken into account the defendant’s affidavits in the original application for the resolution of their property disputes and in the “final” application for monthly payments. She also claimed that the court did not take into account the significant amount of money that the defendant had.
The Supreme Court, in its unanimous decision, found the basis of the complaint completely unfounded, stating that the Family Court, at the beginning of its decision, set out the background of the case, recording the following: “This application was submitted to me for retrial after the order of the Supreme Court. A 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 had set the framework within which it would operate based on the principle set by Bobolas. In essence, the court has formed the position that it will judge and consider the case in the light of any evidence and testimony presented to it in the course of the trial that it considered.The Supreme Court held that the Family Court assessed the testimony and the evidence presented to it, indicating sufficient grounds. It therefore considered the relevant ground to be unfounded and dismissed the complaint.
George Coucunis is a lawyer practicing in Larnaca and founder of George Coucounis LLC, Advocates & Legal Consultants
