The principle of finality arises as an obstacle to the partial adjudication of disputes when there is duplication of the parties and the disputed issues. The party is prevented from raising claims against the same party again or their successor, both those raised previously and those that could have been raised in initial proceedings where a final court decision was made.

What was omitted cannot be raised again in a pleading or presented again by testimony, as it would constitute an abuse of process and a violation of the principle of res judicata, which relieves the court from the obligation to further investigate disputed issues and therefore it does not rule on them, putting an end to the proceedings.

It is socially just and imperative that disputes between parties, when the disputed issues are identical, should not be heard in parts and be perpetuated, but that there should be finality. A party is obliged in their plea to cover all the bases of action that can with reasonable diligence and if they fail to raise an issue before the court, then they will not be allowed to raise a new action after the hearing of the first.

Case law states that the rule of res judicata applies not only to issues examined in the first proceeding but also to any issue closely related to the first proceeding and which the parties with reasonable care could have raised.

Supreme Court decision

The Supreme Court, in its decision issued in C.A. E49/2016 dated January 16, examined the issue of the finality of decisions and ruled that a res judicata impediment may be raised in cases where a disputed fact, while having been decided by a court in a final manner, reappears in a subsequent legal proceeding between the same parties.

Such an impediment may arise both in relation to the cause of action and in relation to the disputed issue. It is useful to note that this specific impediment – ​​whether due to a decision on the same cause of action or due to a decision on a disputed issue – basically concerns the prevention of abuse of the judicial process.

The court noted that case law emphasises that the res judicata arising from a previous procedure extends and covers not only what was raised in the first procedure but also what could have been raised as part of its subject matter, but was not raised. In this way, justice is protected from perpetual proceedings in which the ingenuity of the party would play a leading role.

Case law also emphasises that the obligation resulting from the court decision is binding, not only to the parties but also to the privies – successors of the parties. This category includes all persons whose interest in the proceedings is identical with that of the parties in the first action. As explained in the book Halsbury’s Laws of England 4th ed. Vol.16, para 990, the category of privies/successors, for the purposes of res judicata, includes ancestors and heirs, successors at law, and successors of property or interest.

It is also indicated, as a matter of general legal policy, that the failure of a party to raise in a previous judicial proceeding in their pleas or arguments they developed or to present testimony regarding anything that could support their case or defence, does not justify or permit a new legal battle with the subject of that omission. This would mean the partial adjudication of disputes at the choice of the party and their perpetuation. Thus, the principle of finality, which is socially imposed, would suffer a crucial blow.

In the present case, the first-instance decision that rejected the application for reinstatement of the action was examined. The court of first instance examined the grounds of objection regarding impediment due to res judicata and regarding prescription of the actionable right.

With the action, the appellants claimed the annulment of the transfer of the respondent plot, which, as they claimed, was made without authorisation, with a false power of attorney, illegally, as a result of fraudulent actions and they sought the re-registration of the plot or alternatively the payment of €300,000 in damages. Previously, a similar action was withdrawn and dismissed after the completion of the pleadings without a statement of reservation of rights for its reinstatement.

The Supreme Court, examining the issue of res judicata and referring to the above principles, found the first-instance decision to be correct, since the relevant conditions were met. The parties in both lawsuits were the same persons and they concerned essentially the same subject matter and consequently the appeal was dismissed.

George Coucounis is a lawyer specialising in Immovable Property Law, based in Larnaca. E-mail: [email protected], tel: 24818288