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Litigation Client Update 

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March 9 2017

Saga of Service of Court Documents Via Opening on the Net Continues

A recent decision of the Supreme Court has revisited the question whether opening of a court documents (pleadings and decisions) on the Israeli Courts' case management system (Net Hamishpat – the 'Net') constitutes service of the document seen for the purposes of the Civil Procedure Regulations, 5744-1984, we recently commented on this issue in a case where the Registrar of the Tel-Aviv District Court found service to have been effected in this manner [click here to read previous newsletter]. 
 
While the case centers on questions concerning the recognition and enforcement of certain Russian court decisions under Israeli law (which is not the subject addressed in this newsletter), it should be noted that the respondent had argued - in its written submissions and in the hearing before the Supreme Court – that the appeal should be dismissed in limine since the appeal had not been filed within the requisite period.    The respondent had argued that the time period for filing the appeal should have started from the time the appellant's legal counsel viewed the decision of the District Court on the Net and so the appeal had been filed out of time.   The Supreme Court rejected this argument from the outset.   The respondent had also argued that if this argument is rejected, then the doctrine of 'knowledge' of the decision should apply over the doctrine of actual service of the decision so as to lead to the same result.  The Supreme Court also rejected this argument.
 
The Court refers to Regulation 402 of the Civil Procedure Regulations which condition the commencement of the time for filing an appeal on the valid service of the relevant decision (which was not given in front of the appellant) on the appellant.   Regulation 497C(C1) provides the criteria for when the sight of a decision by a party to it via the Net will be regarded as 'valid service'.   In the case before the Court, the respondent did not argue that these criteria had been met and so it cannot be found that the time had started to run from the date of sight of the District Court decision on the Net by the appellant's counsel. Nevertheless, the Court also noted that each case concerning sight of a decision on the Net has to be examined in its own circumstances in order to see whether there are any concrete reasons justifying such sight as some form of replacement for service.
 
The Court adds that case law has taken the opportunity to prefer, in certain circumstances, the date on which the knowledge of a party of a decision over the date of service of a decision (where the knowledge is created by sight of a decision on the Net).  However, the Court clarifies that the general rule requires service while the doctrine of 'knowledge of the decision' is the exception to that general rule, which would only be applied in cases of lack of procedural good faith in the behavior of the appellant to the proceedings with the burden of proof lying on the party claiming the application of the exception to the general rule.   This was not the case in the matter before the Court.  It also noted that the period which had elapsed between sight of the decision on the Net and the service of the decision was short and that such an argument on the part of the respondent should have been raised at the earliest opportunity with an application to strike out the appeal (which was not the case here).
 
In conclusion – at least for the purposes of appeals, the Supreme Court's approach here is not to close the door to service being deemed valid by means of sight of a entirely, but to leave it open only in exceptional circumstances.

Reference: CA 1948/15 JSC VTB Bank – Dr. Yevgeny Margolis, 6.3.2017, published on Nevo  
Disclaimer: This Newsletter is intended only to provide general updates to clients and for no other purpose. Nothing in this Newsletter constitutes any opinion or advice on the subject matter dealt with therein. For any advice or opinion, clients are advised to approach the relevant lawyer at Naschitz, Brandes Amir & Co.

Contact Us:

Natalie Dolinger
Helen Raziel
Adv. Helen Raziel
tel: 972-3-6235098
mail: hraziel@nblaw.com
Written by Adv. Helen Raziel 
Edited by Dr. Sharon Yadin, Adv.
English version by Adv. Helen Raziel