Review of a case on new or newly discovered circumstances

What is happening

The company was ordered to pay under a contract, and a court in a separate case later declared that contract invalid. The first judgment has formally taken effect and is being enforced, although its basis has fallen away.

After the dispute ended it turned out that the counterparty had concealed a material fact, for example a document that flatly contradicted its position, of which the company was not and could not have been aware. The director asks whether anything can now be done about the judgment.

The Supreme Court or the Constitutional Court has interpreted a provision differently from how it was applied in your case. The question is whether that position can be used to reopen a dispute that has already concluded.

What the law says

• The grounds for review are listed exhaustively: in Chapter 37 of the Commercial Procedure Code (APK) and Chapter 42 of the Code of Civil Procedure. A court will not reopen a case simply because a party disagrees with how the evidence was assessed.
• Newly discovered circumstances existed when the judgment was given but were not and could not have been known to the applicant. They also include falsification of evidence or a knowingly false expert opinion, established by a criminal judgment that has taken effect, which led to an unlawful decision.
• New circumstances arose after the judgment: a court ruling or state decision on which the judgment rested being set aside; a court declaring invalid the transaction that led to an unlawful judgment; a provision being found unconstitutional; or the Supreme Court setting out how a provision is to be applied, where its ruling states that cases may be reviewed on that basis.
• The application must be filed within three months of the circumstance arising or coming to light. It is therefore important to establish exactly when the company learned of it and to prove that with documents.
• Documents and arguments that could have been put forward in the original proceedings are not grounds for review. The mechanism is no substitute for an appeal.
• The application is generally heard by the court that gave the ruling. If it succeeds, the ruling is set aside and the case is heard afresh under the ordinary rules.

What we do

• We analyse the new circumstance and measure it against the statutory list of grounds.
• We establish the date from which the three-month period runs and gather the proof.
• We consider how the circumstance would have affected the outcome: review only makes sense if it is material.
• We draft the application for review with supporting evidence and, where needed, an application to stay enforcement.
• We represent the company when the application is heard and, if the ruling is set aside, at the rehearing.
• If there are no grounds, we say so directly and suggest other ways to protect your position where any exist.

What we will need from you

• The ruling you want reviewed and any higher-court rulings in the case.
• Documents evidencing the new or newly discovered circumstance: a ruling in another case, a criminal judgment, a decision of a state body, the document that has come to light.
• An account of when and how the company learned of the circumstance, with supporting evidence.
• Information on enforcement of the judgment: the writ, enforcement proceedings, payments made.
• A power of attorney to represent the company.