Leaving a claim without consideration in connection with an abuse of procedural rights is possible at the stage of preparatory proceedings in a case if the signs of abuse are of an obvious, undoubted and procedurally established character – SC GC

The application of measures to prevent an abuse of procedural rights on the grounds provided for by paragraph 3 of part 2 of Article 43 of the Commercial Procedure Code of Ukraine, which corresponds to paragraph 3 of part 2 of Article 44 of the Civil Procedure Code of Ukraine and paragraph 3 of part 2 of Article 45 of the Code of Administrative Procedure of Ukraine, is possible at the stage of preparatory proceedings in a case if it is precisely at that stage that the court has established signs of the bad-faith use of procedural rights.

The application of measures to prevent an abuse of procedural rights is a right of the court and not its unconditional duty. The exercise of this power does not depend on the existence of a corresponding application by a participant in the case, since the court has the right to respond to an abuse of procedural rights on its own initiative.

At the same time, such a response must be effected only under conditions of the proper establishment of the obvious bad faith of the procedural conduct and with observance of the principles of proportionality, fairness and a person’s right of access to a court.

These conclusions were made by the Grand Chamber of the Supreme Court.

In the present case LLC “Try O” brought a claim against JSC “Oschadbank” and JSC “Ukreximbank” for recognition of a consortium credit agreement as invalid.

The court of first instance opened proceedings in the case and, at the preparatory hearing, adopted a ruling leaving the claim without consideration on the grounds provided for by paragraph 3 of part 2 of Article 43 of the Commercial Procedure Code of Ukraine, concluding that the filing by LLC “Try O” of numerous procedural applications in different cases which, by their content, contradicted one another constituted evidence of the claimant’s abuse of its procedural rights.

The appellate commercial court set aside the ruling and remitted the case to the local commercial court for continuation of the consideration, concluding, inter alia, that the recognition of the claimant’s actions as an abuse of procedural rights within the meaning of paragraph 3 of part 2 of Article 43 of the Commercial Procedure Code of Ukraine with the leaving of the statement of claim without consideration at the stage of preparatory proceedings, rather than during the consideration of the case on the merits, constituted a restriction of access to justice and a violation of the principles of equality and adversarial proceedings of the parties.

In reviewing the case, the Grand Chamber of the Supreme Court noted that measures to prevent an abuse of procedural rights on the grounds provided for by paragraph 3 of part 2 of Article 43 of the Commercial Procedure Code of Ukraine, which corresponds to paragraph 3 of part 2 of Article 44 of the Civil Procedure Code of Ukraine and paragraph 3 of part 2 of Article 45 of the Code of Administrative Procedure of Ukraine, may be applied by the court at the stage of preparatory proceedings in a case, just as during the consideration of the case on the merits, if at the relevant stage of the proceedings the court has established signs of the bad-faith use of procedural rights.

Having regard to the tasks of preparatory proceedings, which include, in particular, the final determination of the subject-matter of the dispute and the nature of the disputed legal relations, the claims and the composition of the participants in the judicial process; the clarification of objections to the claims; the determination of the circumstances of the case that are subject to establishment and the collection of the relevant evidence, it is precisely preparatory proceedings that should be regarded as the most typical stage for the application of measures to prevent an abuse of procedural rights. At this stage the court obtains the opportunity to assess: the reality of the dispute; the existence of a substantive-law interest; the good faith of the procedural conduct; the interrelationship between the parties; the artificiality of the dispute or the fictitiousness of the claims advanced.

Thus the Grand Chamber of the Supreme Court concluded that preparatory proceedings constitute the optimal stage for the court to establish the facts of the filing of a knowingly groundless, artificial or objectless claim / dispute and, as a consequence, to adopt a ruling leaving the statement of claim without consideration, as provided for by paragraph 1 of part 2 of Article 185 of the Commercial Procedure Code of Ukraine (paragraph 1 of part 2 of Article 200 of the Civil Procedure Code of Ukraine, paragraph 1 of part 2 of Article 183 of the Code of Administrative Procedure of Ukraine) following the preparatory hearing in the case.

At the same time the Grand Chamber of the Supreme Court emphasised that such interference with the exercise by the claimant of its procedural rights is permissible only in the presence of obvious, properly established and sufficiently reasoned signs of the bad-faith use of the right to judicial protection.

Since in the present case it was established that the claimant had filed a series of procedural applications in other cases which, by their content, contradicted the essence of the endeavours in each of them (in one instance it regarded the debt as terminated, in the second it acknowledged it, in the third it sought recognition of the grounds of that debt as invalid, in the fourth it requested the completion of preventive restructuring, and in the fifth, on the contrary, its continuation), the Grand Chamber of the Supreme Court agreed with the conclusion of the court of first instance that the filing by LLC “Try O” of the statement of claim constituted an abuse of procedural rights on the grounds provided for by paragraph 3 of part 2 of Article 43 of the Commercial Procedure Code of Ukraine.

Having regard to the foregoing, the Grand Chamber of the Supreme Court granted the cassation appeal of JSC “Oschadbank”, setting aside the resolution of the appellate court and leaving in force the ruling of the court of first instance leaving the claim without consideration.

Resolution of the Grand Chamber of the Supreme Court of 1 July 2026 in case No. 910/10837/25 – https://reyestr.court.gov.ua/Review/138916246.

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