Advocates Refael Liba and Ofer Cohen-Zedek were invited to lecture at the Israel Bar Association annual conference, held this year in Eilat.
Adv. Refael Liba was invited to participate in the conference at a session on the subject: “Give us Efficiency, Professionalism, and Certainty in the Law! On Shortcomings in Litigation and Decision-Making in Complex Commercial Cases.” In his lecture, Adv. Liba addressed the new Civil Procedure Regulations, which came into effect at the beginning of 2021 and are intended to establish a new procedure for litigating civil proceedings in court, including in complex commercial cases. In his remarks, Adv. Liba referred to several tools that were introduced in the new regulations to ease the burden imposed on the courts and streamline hearings. One of these is the obligation to award reasonable and fair costs unless there are special reasons for not doing so. Adv. Liba explained that this has two advantages: it helps the person who won the case and needs to pay fees to the attorneys who represented him, and it prevents the filing of frivolous lawsuits/motions. In practice, the courts have not yet implemented this tool properly, including in complex economic cases, in which the costs are high, whereas the legal costs that are awarded do not reflect these costs. Attorney Liba also referred to another tool that can streamline the proceeding, which is the preliminary hearing, which requires the parties to exchange information and documents, as well as to hold discussions about the possibility of resolving the dispute out of court, and if these attempts are unsuccessful, the parties are at least required to minimize the dispute between them and reach procedural agreements that will streamline the proceeding. Another tool that is designed to allow the proceeding to end more quickly and to which Adv. Liba drew attention is giving preference at the end of the hearing to the procedure of oral summations. Thus, the summations of both parties are heard on the same day, following which the court immediately begins preparing the judgment, even though this tool is less suitable in cases where the dispute is a complex one.
Adv. Ofer Cohen-Zedek was invited to give a lecture at within the framework of a session on the subject of “Civil Enforcement through Class Actions for the Protection of the Environment, Consumer Rights and the Quality of Life.” Adv. Cohen-Zedek discussed the balance of forces between the parties in a class action and how the scales clearly tip in favor of the applicant (the plaintiff) in a motion for certification of a class action. The plaintiff hardly loses anything in a case where the motion for certification is dismissed, except for legal costs, which are usually set at a low figure. By contrast, the defendant is confronted by a class action on a huge financial scale. This balance of forces encourages the class plaintiffs to litigate frivolous cases and flood the courts, at the expense of other cases that merit being heard. The solution to this problem can be found in two ways: one is significantly raising the amount of the court fee that the plaintiff is required to pay for filing the proceeding. The amount of the fee will testify to the seriousness of the action and act to filter out frivolous actions. Another way is to adopt the policy of awarding real costs against the plaintiff when the motion for certification is dismissed (whereas the court’s approach today is more ‘merciful’). The awarding of costs should be consistent with the amount of the class action that was denied and the real costs of the defendant in its efforts to defend itself against the class action.
Adv. Ofer Cohen-Zedek also addressed the value of future regulation within the framework of settlements that are submitted for the approval of the courts. Almost every settlement in a class action contains an element of regulating the infringing activity from that time forward, so that it will comply with the requirements of the law. In this context, he pointed out the obvious advantage of a withdrawal arrangement over the settlement as a tool for terminating class action proceedings. The withdrawal arrangement is a convenient and efficient tool for enforcing the law and terminating the proceeding, without this constituting res judicata against the members of the class. The process of approving a withdrawal arrangement is very brief and does not involve costs such as newspaper publication or needing to request the position of the Attorney-General and responding to it.
