Facts
This decision of the Swiss Federal Tribunal concerns the admissibility of nova (new facts and evidence) in the appeal procedure. The parties involved are A.A. and B.A. against C. The dispute has been brought before the Federal Tribunal by way of a civil law appeal. The main factual elements are as follows: - The appellants filed a request for nova on 7 April 2015, containing new factual allegations and a new witness. - The lower court rejected this request as late, considering that the final deadline for submitting nova was the decision of 9 February 2015 by which it had informed the parties that it would waive a second exchange of written submissions and an appeal hearing.Considerations
The Federal Tribunal examined the principles governing the appeal procedure and the law on nova:Appeal Procedure: The Federal Tribunal recalls that the appeal procedure is an autonomous procedure, in which the appeal court has a wide discretion to direct the procedure and order investigative measures. As a general rule, the appeal takes the form of a written procedure, without a hearing and without the taking of new evidence.
Law on Nova: According to Art. 317(1) CPC, new facts and evidence can only be invoked on appeal if they are produced without delay and could not have been presented at first instance despite reasonable diligence. The Federal Tribunal considers that this provision exhaustively regulates the conditions under which nova may exceptionally be admitted on appeal, regardless of the application of the inquisitorial or adversarial principle.
Deadline for Submitting Nova: The Federal Tribunal considers that the…