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The Influences of Constitutional Principles on Civil Procedure in Israel*
Published online by Cambridge University Press: 12 February 2016
Extract
In this article we will attempt to clarify a number of basic constitutional principles as they are reflected in the Israeli system of civil procedure. In so doing, we do not purport to be exhaustive as to the constitutional principles discussed. Rather, we will be selective, and shall place our emphasis on those principles that are most basic to the Israeli system. First, however, we must briefly describe the Israeli constitutional structure. Israel has no written constitution. Nor do any of the Basic Laws, which have a quasi-constitutional standing, specifically treat the issues discussed in this article. Yet, this does not mean that constitutional principles do not influence civil procedure in Israel.
First, it should be noted that many constitutional principles, in the broad meaning of this term, i.e., fundamental, structural principles, are embedded in positive Israeli legislative provisions, both of primary and of secondary legislation.
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References
1 7 L.S.I. 124.
2 11 L.S.I. 157.
3 1 L.S.I. 7.
4 S.H. 163.
5 33 L.S.I. 141. For a general discussion of this Law, see Goldstein, S. and Schottenfels, D., “Digest: Recent Legislation and Cases”, (1980) 15 Is.L.R. 131, 144–153.CrossRefGoogle Scholar
6 Id., at 149. See also Goldstein, S. and Schottenfels, D., “A Digest of Recent Israeli Cases” (1979) 14 Is. L. R. 382, 387–388.Google Scholar
7 Israel Rules of Civil Procedure (hereinafter I.R.C.P.), Rule 24.
8 Id., Rules 51 and 21.
9 Id., Rule 105.
10 Id., Rule 484.
11 Id., Rule 489.
12 Id., Rule 143.
13 See The Company for the Development of Beersheva v. The Beersheva Workshop Storage Co., (1975) (II) 29 P.D. 632. In this case the court, in an opinion by Justice Sussmann stated that a judge may not take into account a party's failure to agree to settlement when taxing costs. However, despite this statement, the court did indeed examine and analyze the plaintiff's refusal to accept the trial court's proposed settlement and concluded that the plaintiff acted reasonably in so refusing. See also the recent Supreme Court decision in Hollander Co. v. Hod Avaz Co. (1982) (IV) 36 P.D. 433, as well as I.R.C.P., Rule 235 concerning settlement offers that are accompanied by payments into court.
14 I.R.C.P., Rule 186. See also Rule 185.
15 Id., Rule 172.
16 See Sussmann, Y., The Law of Civil Procedure (4th ed., 1973, in Hebrew) 396.Google Scholar
17 Ibid.
18 7 L.S.I. 124.
19 23 L.S.I. 76.
20 Id., at 78.
21 Supra n. 18.
22 Gabana v. The District Court, Tel Aviv-Jaffa (1974) (II) 28 P.D. 518, 526.
23 M. K. Aharon Abu-Hatzeira v. The State of Israel (1982) (I) 35 P.D. 247.
24 Ibid.
25 See I.R.C.P., Rules 301–309.
26 30 L.S.I. 240.
27 See, e.g., Labour Courts Law, 1969, supra n. 19, secs. 32 and 33; Land Law, 1969, 23 L.S.I. 283, sec. 75.
28 See, e.g., I.R.C.P., Rules 97, 227, 487, 488, 491.
29 I.R.C.P., Rule 97.
30 Id. Rule 488.
31 Id., Rule 227.
32 Id., Rule 487.
33 Id., Rule 491.
34 Id., Rule 154. See also The Company for Building Work v. Gilad, Ephron Builders Inc., (1977) (III) 31 P.D. 516.
35 Compare in this regard the English Rules of the Supreme Court (0,20, r. 3) and the American Federal Rules of Civil Procedure (R. 15) which do provide for such amendment of the pleadings as of right.
36 Compare in this regard the English Rules of the Supreme Court (0,27, r. 2) and the American Federal Rules of Civil Procedure (R. 41(a)) which do provide for such voluntary dismissals as of right.
37 It is true, of course, that the Israeli courts have held that a defendant has a “right” to rectify his mistake in not filing his defence on time if he files it before the entry of a default judgment against him. However, this special case law holding is not based on a particular provision of the Rules of Civil Procedure, but rather appears to be in conflict with the plain meaning of I.R.C.P., Rule 102. For further discussion on this point as well as as on the other issues discussed above concerning judicial discretion to allow for the correction of mistakes, see Goldstein, S., “Default and Opposition (Reopening)”, in Israeli Reports to the XI International Congress of Comparative Law (Goldstein, S., ed.), (The Harry Sacher Institute for Legislative Research and Comparative Law, Faculty of Law, The Hebrew University of Jerusalem, 1982), 64–87.Google Scholar
38 See Y. Sussmann, supra n. 16, at 580.
39 Mugrabhi v. Weirdiman, (1957) 11 P.D. 1242.
40 See, e.g., Eliahu v. Extra, (1965) (III) 19 P.D. 571.
41 Small Claims (Jurisdiction) Law, 1976, supra n. 26, sec. 7.
42 See Courts Law 1957, supra n. 2, sec. 8.
43 See Courts Law (Amendment 15), 1982, sec. 3, (S.H. 1057). Another exception to the rule that there is always one appeal as of right as to all final judgments may be found in the unique situation of denial of motions to set aside default judgments, which, despite their finality, have been categorized by the case law as “other decisions” and not final judgments. For discussion of this issue, see S. Goldstein, “Default and Opposition (Reopening)”, supra n. 37, at 76–78.
44 I.R.C.P., Rule 376.
45 Kalkooda v. Egged, (1959) 13 P.D. 260; Salach v. Salach (1974) (II) 28 P.D. 473.
46 Sharfsky v. Sharfsky (1968) (I) 22 P.D. 277.
47 I.R.C.P., Rules 32–35.
48 See generally, Goldstein, S., “International Jurisdiction Based Solely on Service of Process”, (1980) 10 Mishpatim 409.Google Scholar
49 22 L.S.I. 210.
50 Id., sec. 5.
51 As to all the above conditions, as well as their applications, see Ottolenghi, S., Arbitration—Law and Procedure (The Faculty of Law, The University of Tel Aviv, 2nd ed., 1980, in Hebrew) 79–98.Google Scholar
52 Courts Law 1957, supra n. 2, sec. 7.
53 Ibid.
54 Id., sec. 7 (b) (4).
55 See Bariah v. Kadi (1955) 9 P.D. 1193; Shetreet v. The Chief Rabbi (1964) (I) 18 P.D. 598.
56 Compare the cases cited in n. 55 supra and the different views expressed therein with Clair v. The Rabbinic Court (1972) (I) 26 P.D. 757.
57 See Levy v. District Rabbinical Court, Tel Aviv (1959) 13 P.D. 1182; see generally Englard, I., Religious Law in the Israel Legal System (Harry Sacher Institute for Legislative Research and Comparative Law, Faculty of Law, The Hebrew University of Jerusalem, 1975) 159–168.Google Scholar
58 See I. Englard, supra n. 57.
59 See, e.g., the cases cited in notes 55 and 56 supra; see also Gitiah v. The Chief Rabbinate (1968) (I) 22 P.D. 290.
60 Small Claims (Jurisdiction) Law 1976, supra n. 26, sec. 6.
61 Deutch, S., “The Small Claims Court in Israel as a Shield to Consumers” (1981) 8 Iyunei Mishpat 345, 368.Google Scholar
62 Id., at 369.
63 Id., at 368.
64 Ibid.
65 H.H. 1607 (21. 10. 1982).
65a Prior to the actual publication of this article the above-discussed amendment has indeed been adopted by the Knesset, Small Claims (Jurisdiction) Law (Amendment No. 2) 1983, S.H. 1073, thus providing the one exception to the unqualified right of litigants to be represented by counsel.
66 The existence and extent of legal aid is also an important practical aspect in the cost of litigation and thus in access to the courts. However, a full discussion of the status of legal aid in Israel would be well beyond the confines of this article. For discussions of legal aid in Israel, see Lieberman, H. R., “Israel's Legal Aid” (1974) 9 Is.L.R. 413Google Scholar; Ginossar, S., “Access to Justice in Israel”, in Cappalletti, M. (gen. ed.) Access to Justice (Sijthoff & Noordhoff, Milan, 1978), vol. I, book 2, pp. 625, 634.Google Scholar
67 15 L.S.I. 196.
67a Prior to the actual publication of this article the filing fees in the small claims courts have been changed so that they are now set at 0.5% of the value of the claim with a minimum fee of IS 15. Regulations of Small Claims Courts (Procedure) (Amendment) 1983, K.T. 4449.
68 See, e.g., Tax Assessor v. Lahad (1975) (II) 29 P.D. 505; Trustees Committee of the Moslem Wakf v. Siksis (1974) (II) 28 P.D. 454. It should be noted that the courts have so held despite the fact that I.R.C.P., Rule 105 lists the failure to pay the correct filing fee as a grounds for dismissal of a complaint.
69 I.R.C.P., Rule 9(c).
70 See, e.g., Atiyah v. Cohen et al. (1968) (I) 22 P.D. 86; Bank HaPoalim v. The Estate of Bachai (1966) (IV) 20 P.D. 169.
71 28 U.S.C. sec. 1292; See also, Fleishman Distil. Corp. v. Mater Brewing Co., 386 U.S. 714 (1967); F. D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 126–131 (1974).
72 See Farmer v. Arabian American Oil Co., 379 U.S. 227, 236–237 (1964) (Goldberg, J.), 324 F 2d 359, 365–370 (Smith, J. and Clark, J.); Fleishman Distil. Corp. v. Maier Brewing Co., supra n. 71; F. D. Rich Co. v. Industrial Lumber Co., supra n. 71. Goodhart, , “Costs” (1929) 38 Yale L. J. 849, 872–878CrossRefGoogle Scholar; Goodhart, , “Current Judicial Reform in England” (1952) 27 N.Y.U.L. R. 395, 405–406.Google Scholar
73 See I.R.C.P., Rule 476.
74 See, e.g., cases cited n. 70 supra. See generally Goldstein, S., “Class Actions: What and Why” (1979) 9 Mishpatim 406, 440–441.Google Scholar
75 See Goldstein, S., “Class Actions—A Surprising Development in England”, (1981) 11 Mishpatim 412, 429.Google Scholar
76 I.R.C.P., Rules 16 and 17.
77 Id., Rule 439. It should be noted that this service of process, on the defendant also serves in the Israeli system, as it does in England, as the basis for the assertion of international jurisdiction over the defendant. See generally, S. Goldstein, “International Jurisdiction Based Solely on Service of Process”, supra n. 48. This fact does not, however, denigrate from the important notice function of such service.
78 I.R.C.P., Rule 439.
79 Id., Rule 443.
80 Id., Rule 444.
81 Id., Rule 445.
82 Id., Rule 447.
83 id., Rule 465.
84 Y. Sussmann, supra n. 16, at 189–190.
85 For further discussion of the setting aside of default judgments see S. Goldstein, “Default and Opposition (Reopening)”, supra n. 37.
86 Ibid.
87 Ginossar, supra n. 66 at 630–633.
88 A review of the available statistics for the years 1979 and 1980 indicates that the basic conclusions reached as to the years 1976, 1977, 1978, still continue in force.
89 In 1979 and 1980, the percentages were 9.2% and 9.6% respectively.
90 The percentages for 1979 and 1980 are 37% and 24% respectively.
91 In presenting these figures as to the percentage of requests granted as to large claims we have used only the figures for 1976 and 1978 and have ignored the percentage for 1977 which is an incredibly high 93.9%. Such a figure is clearly an aberration for which we have no explanation. Because of a change in the method of publishing the court statistics, there are no equivalent figures available for 1979 and 1980.
92 See, generally, Tedeschi, G., “On the Date for Assessing Damages”, (1978) 13 Is.L.R. 10Google Scholar; Yadin, U., “The Date of Judgment for the Assessment of Damages” (1978) 13 Is.L.R. 111Google Scholar; Gilad, I., “On Linkage and Reevaluation” (1980) 15 Is.L.R. 79CrossRefGoogle Scholar; Yoran, A., “On Linkage and Reevaluation” or “A General or Specific Index”? (1980) 15 Is.L.R. 106Google Scholar; Goldstein, S. and Cohen, D., “Digest: Recent Legislation and Cases”, (1981) 16 Is.L.R. 110.Google Scholar See also Yoran, A., “The Effect of Inflation on Civil Liability in Israel”, in Israeli Reports to the XI International Congress of Cooperative Law (Goldstein, S., ed.)Google Scholar, supra n. 37 at 18–29.
93 See the sources cited supra n. 92; see also Yoran, A., “Linked Compensation—Full Compensation”, (1979) 14 Is.L.R. 515Google Scholar and the unofficial English text of the Law provided for linkage differentials reproduced therein at pp. 520–523.
94 I.R.C.P., Rules 303–319.
95 See, e.g., Widovsky v. Kisar (1968) (II) 22 P.D. 11; Yishar v. Bibas (1974) (II) 28 P.D. 573, 576–579.
96 Monruf v. Klemnitz (1976) (III) 30 P.D. 179.
97 Id., at 188.
98 Supra n. 2.
99 The State of Israel v. The Angel Bakery Co. (1980) (IV) 34 P.D. 277, 278.
100 For an excellent analysis of the accountability of judges under Israeli law and practice see Shetreet, S., “Judicial Responsibility”, in Israeli Reports to the XI International Congress of Comparative Law, supra n. 37 at 88–162.Google Scholar
101 See, e.g., I,R,C,P., Rule 304 and Rules 254(b) and 257A.
102 M. K. Aharon Abu-Hatzeira v. The State of Israel, supra n. 23, at 248.