A recent decision of the Registrar of the Tel-Aviv District Court has found that where a lawyer opens a decision which has been uploaded to the Israeli Courts' electronic case management system (Net Hamishpat – the 'Net') this constitutes valid service of such decision (and so is relevant for the purposes of the time frame set down in the procedure regulations for reacting to such decision). It has to be said that this is one of a growing number of decisions, which do not always stand one alongside the other, being handed down on the subject of service of court pleadings and decisions via the Net.
The legislative background to this decision lies in the Civil Procedure Regulations, 5744-1984, Regulations 497c(A), 497c(D) and 497c(E), which - in summary - provide:
- Court pleadings can be served by electronic means to a recipient which is not the court where the recipient provided the Court with a secure address in an email for the purposes of service of pleadings;
- A party asking to serve pleadings to the Court by email gives the Court an email address or a secured address in the email for the purpose of receiving pleadings from the Court;
- Delivery to the said email which the applying party provided ((ii) above) will be deemed to be service.
As is evident from these Regulations, they do not address is the question of whether accessing the Net to see a particular decision uploaded there is also deemed to be service. This lacuna was recognized by the Registrar in his decision but nevertheless he decided that these Regulations do sufficiently address service of court decisions via the Net and listed the following reasons:
- In the explanatory notes to the relevant amendments to the Civil Procedure Regulations, the intention of the secondary legislature was – inter alia – to resolve issues of service of decisions sent by the Court. The temporary solution being via email (although this also relates to the increasing use of the Net). He noted that access to the Net is by a password and that the person accessing does not access all decisions but only those in his/her files ; and
- The principle of mutuality – this obliges the party requesting to file via the Net to agree to receive via the Net (mutuality can raise issues where full mutuality has not been met such that a decision on the Net is accessed by a party who has not provided an email address for the purposes of receiving pleadings/decisions); and
- He did not see any reason to differentiate between reading a decision in an email or reading on the Net, and noted the increasing tendency to depart from the strict formalities of service towards the principle of 'actual knowledge' (which focusses more on whether a party knew of a decision rather than on whether it had been properly served with it).
Such a decision can have wide-reaching impact on the conduct of litigation (tracking decisions of interest to different case[s] being handled within the same firm, timing of service and access from outside Israel in a different time zone, laches, etc) and the on-going discussion of the balance between considerations as to whether service was properly made as opposed to whether a party had actual knowledge of the decision irrespective of whether service was properly effected. We can assume the Registrar's decision is not the last word on the subject.
References: CAK 1023-03 Bank Hapoalim Main Haifa Branch v Rushink, Nevo (14.11.2016); BS"A4825/16 Doe v Doe, Nevo (07.09.2016); RA"A 3246/16 Siham Hanfei v Ziva Marg'ia, Nevo (18.05.2016); CA 42659-05-16 Hori et al v the Shomron District Council, Nevo (09.11.2016)
