1. **Subject matter of the dispute:** Recovery of inflationary losses and 3% per annum from SE “Guaranteed Buyer” in favor of JSC “NNEGC “Energoatom” for late payment for electrical energy for the period of 2021–2025.
2. **Key arguments of the court:**
– The courts of lower instances incorrectly applied the concept of prejudice (the mandatory nature of circumstances established in another decision), believing that since the fact of delay was established in case No. 910/20227/21, any new evidence in this case is irrelevant.
– The Supreme Court emphasized that prejudice is not absolute: if a party provides evidence in a new case that was not previously examined (in particular, the Settlement Agreement of 08.02.2022), the court is obliged to evaluate it.
– The court underscored that failure to provide evidence in a previous case does not deprive a party of the right to submit it in a new case to substantiate its position.
– The Supreme Court pointed out the necessity to clarify the legal nature of the Agreement terms: whether they constitute a deadline for the performance of an obligation or a condition precedent, as this directly affects the grounds for the accrual of inflationary losses and 3% per annum.
– The courts failed to investigate whether this Agreement changes the procedure for settlements under the Contract and whether it releases the defendant from liability for the delay.
– The Supreme Court noted that the conclusions of the courts in this case may differ from previous ones if they are based on a broader evidentiary basis, and this does not constitute a violation of the principle of the finality of a court decision.
– The Supreme Court in this decision provides a detailed clarification on the application of Art. 75 of the Commercial Procedure Code of Ukraine (prejudice) and Art. 212 of the Civil Code of Ukraine (conditions precedent), effectively refining the approach to the evaluation of evidence that was not the subject of consideration in previous cases between the same parties.
3. **Court decision:** The Supreme Court set aside the decisions of the courts of first and appellate instances and remanded the case for a new trial to the Commercial Court of Kyiv.
