Article 199 ter: Right to apply for new trial

Décisions de la Cour suprême interprétant cette section

1. Arrêt de la Cour suprême n° 13602/2558 (2015)

   An order granting a new trial is final under section 199 quinquies paragraph four. Where the first court refuses to accept an appeal against such an order and the appellant does not challenge that refusal, the order stands, the point has not been properly raised in the court below, and section 249 paragraph one bars the Supreme Court from reviewing it. Separately, where the appellate court finds that the plaintiff has no standing, it should vary the judgment below into a dismissal rather than affirm an order striking the case off; that is a question of public order which the Supreme Court may correct of its own motion under section 142(5) with sections 246 and 247.

   In a dispute over defective roof-deck work under a construction contract the defendant was in default of answer. After an inquiry the first court granted a new trial and then struck the case off so that the parties could go to arbitration. The plaintiff appealed; the first court accepted the appeal only against the strike-off, holding that the order granting a new trial was final under section 199 quinquies paragraph four, and the plaintiff never challenged that refusal. The Supreme Court therefore declined to review whether a new trial should have been granted: the order was final, the point had not been properly raised below, and section 249 paragraph one barred it. On the plaintiff argument that the dispute fell outside the arbitration clause it held the Court of Appeal had decided the point correctly and refused to take the case under section 23 paragraph one of the Courts of Justice Organisation Act. Of its own motion it corrected the disposition: having found no standing, the Court of Appeal should have varied the judgment into a dismissal rather than affirming the strike-off.

2. Arrêt de la Cour suprême n° 1186/2558 (2015)

   A motion to set aside irregular proceedings for defective service under Section 27 is distinct from an application for a new trial under Sections 199 ter, quater and quinque; a party who mislabels the former as the latter is still bound by the Section 27 eight-day time limit.

   The defendant framed its motion as one under Sections 199 ter, quater and quinque, but the Supreme Court held it was in substance a motion to set aside irregular proceedings for defective service under Section 27. Filed more than eight days after the defendant learned of the ground, it was out of time and failed.

3. Arrêt de la Cour suprême n° 1815/2559 (2016)

   A defendant in default of answer may apply for a new trial under Section 199 ter within fifteen days from service of the writ of execution under Section 199 quater paragraph one, but where the court has set a means of serving the writ, that arrangement must first be complied with.

   The Supreme Court explained that under Section 199 ter and Section 199 quater paragraph one, the fifteen-day period to apply for a new trial runs from service of the writ of execution, and where service is by posting, it takes effect after the fifteen-day posting period has passed.

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