THE retrial of a case may be ordered by the Supreme Court in exercising its appellate jurisdiction and the case is heard from the beginning without taking into account the previous trial. The litigants are no longer bound by the outcome of the previous trial, which is considered as 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 over the first one and any finding of the Court in 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 trial and any existing issues can be abandoned. The Court during the retrial is not bound or hampered by the decision and the findings of the first trial, it does not take them into account and tries the case from the beginning.

The principles governing the retrial of a case de novo, were dealt with by the Supreme Court in a decision dated 15.2.2022 examining the appeal of a judgment issued by the Family Court. The appellant raised as a ground of 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, examining the appeal, 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 and it does not create res judicata and/or the litigants and/or the witness are not bound by statements made in the previous 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 Family Court had disregarded a significant amount of money being part of the respondent’s assets, which should have been taken into account in determining the amount of the monthly instalments.

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 sets 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 upheld the aforesaid statement of the Family Court adding 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, documents, testimony was brought before it during the trial which it was adjudicating.

The Supreme Court held (a) that the Family Court assessed the testimony and the evidence brough before it, giving sufficient reasons. Especially for the amount recorded as income from a second job, the respondent was cross-examined and the Court accepted his position as credible that he never did a second job but only helped his father, who gave him money to built the marital house, (b) after studying the minutes of the proceedings, it concluded that what was submitted to the respondent without bringing before him the minutes of the previous proceedings, it was the claim of the appellant that he was working with his father for a certain period, while the respondent replied that until the time he stopped, he was helping his father. Consequently, the Supreme Court considered the relevant ground unfounded and dismissed the appeal.