On 1 January 2021 the new controversial Civil Procedure Regulations entered into force.
During 2020, the Israeli Bar Association and other consumer groups objected to the rigid spirit of these regulations and the hardships that they may impose on litigants in the courts. However, this proved to be to no avail. The Ministry of Justice initiated this reform, declaring that it aims to make the judicial process more efficient and transparent. By changing the rules of the game, the ministry hopes to secure efficient justice and safeguard public interests.
The new regulations are approximately one-third of the number of the previous regulations. This reduction was achieved by:
- abolishing various proceedings which were less frequently applied (eg, interpleader and opening motions); and
- setting a uniform structure and length for court pleadings (ie, statements of claim and defence must be between seven and 10 pages).
In addition, a limit was placed on the questionnaire (25 pages in the magistrates' court and 50 pages in the district court). Further, the regulations remove applicants' right of response in written requests and authorise judges to dismiss requests or appeals without response and without detailing their reasoning.
The new regulations empower the courts to impose costs in favour of the other party or the state, when regulations are not kept. The penalties may be stricter, such as striking out the statements of claim or defence.
Any document submitted to the courts will be first checked by a judicial secretary and will be accepted only if approved as complying with the requirements.
This reform aims to facilitate a more efficient court process and avoid improper delays in proceedings. Hence, requests for the postponement or change of the initial dates of hearings will be granted only in a limited manner, where no feasible alternative is found in order to keep the dates as scheduled.
One of the main changes of this reform is the shifting of the burden of the preparatory stage over to the parties, as opposed to the prior method that involved the courts. After exchanging the statement of claim and defence, third-party notices and responses, the parties must meet and disclose documents for the review of the counter party. They must also make a list of agreed points and disputed issues and submit a detailed written report to the court, prior to the first pre-hearing.
At this stage, the parties must also present the following prior to the pretrial:
- a list of requests to the court;
- a list of the witnesses; and
- the gist of their testimonies.
This imposes on lawyers and their clients most of the costs which previously would have been spread out over a longer period, during which the parties could have considered a settlement to save extra costs and expenses. By imposing these duties, the regulations impose a financial burden during the first stages of the trial.
Parties must study and understand these new procedures, which may cause increased uncertainty during the first years of implementation. This may further lead to different interpretations of the regulations until precedential judgments are given by the Supreme Court, which would then bind all lower instances. This process may take up to two or three years.
In the meantime, plaintiffs must prepare their claims more thoroughly with all supporting documents and opinions. On the other hand, defendants must respond to court claims in an efficient and timely manner, in order to not be considered as delaying the process contrary to the spirit of the regulations.
In addition, in the past, lawyers were able to offer their clients fees based on a breakdown of stages, where the first stage of the pretrial could require less investment of work and expenses. This could be also an incentive for early settlement before heavy costs of disclosure in complicated cases were borne. It seems now that the centre of gravity has been shifted to the first stage prior to the preliminary hearing by the court.
Litigation will be costlier and the courts' stringent attitude (which can already be observed in the courts awarding heavy costs for requests for extensions) may lead parties to mediate and settle claims instead of filing them in court. Mediation of claims has proved effective when carried out by experienced lawyers or retired judges rather than handling expensive processes which may end in unexpected all-or-nothing resolutions.