ISRAEL Law and Practice Contributed by: Yitzhak Yaari, Chen, Yaari, Vaki & Co.
to testify through the court, while specifying that they are required to bring the requested documents with them. The court has the power to order a third party to disclose and produce documents and evidence, but it will only use this in special and exceptional cases, and only after it has carefully and meticulously exam - ined the facts of the case and ascertained that the requested disclosure is indeed related to the issues in dispute. The exceptional cases that have been recog - nised as allowing the use of this power include: • when a claim is made of a conspiracy between the party to the proceeding and the third party; • when the third party is owned or controlled by the party to the proceeding; • when bank documents are requested, and prima facie evidence is presented that the bank account is in fact an account of the party to the proceeding, even though it is not registered in their name, or that the party transferred money to the third party’s account in bad faith and with the aim of concealing this fact, in co-operation with the account holder. 2.4 Procedural Orders Israel’s Civil Procedure Regulations provide that motions for temporary relief are heard in the presence of both parties, but a court “may, for special reasons, grant temporary relief ex parte, if it is persuaded, based on sufficient evidence, that there is a reason - able concern that the delay caused by holding the hearing in the presence of the parties or serving the motion on the respondent will frustrate the purpose of the temporary relief or cause the applicant serious harm.” This rule, according to which the motion will be heard in the presence of both parties, does not apply to a motion for a temporary lien and a motion for seiz - ing evidence, which will generally be heard ex parte. In the decision granting provisional temporary relief (ie, relief granted ex parte, before the hearing in the presence of both parties), the court needs to schedule a hearing in the presence of all the parties as soon as possible and no later than 14 days after the provisional order was granted (unless it finds special reasons for ordering a later date). Notwithstanding, when a tem - porary lien order or seizure order is issued ex parte, the court will not schedule a hearing in the presence of both parties unless the respondent (or the holder)
requests the cancellation of the order. A provisional order that is granted ex parte must be served on the other party without delay and no later than three days after the order was granted. Someone who applies to the court ex parte has a greater duty of good faith, is required to disclose all the relevant details to the court, and if they are in doubt as to whether they should disclose any par - ticular detail, they are required to disclose it. A lack of good faith or a failure to disclose a detail that should have been disclosed may result in the order being set aside. 2.5 Criminal Redress Naturally, victims of fraud often file a complaint with the police. If an investigation is indeed opened, it often leads to a delay – sometimes for years – of the hearing of civil proceedings (usually at the request of the State Attorney’s Office), for fear of disrupting the investiga - tion and the criminal proceedings. As part of crimi - nal proceedings, the police often seize the suspect’s property. For these reasons, it is often recommended to file civil proceedings and not initiate criminal pro - ceedings, which may delay the civil proceedings and harm the victim’s chances of recovering assets from the fraudster. 2.6 Judgment Without Trial When the statement of claim has been properly served on the defendant, and they do not file a statement of defence on time, the court may be petitioned to grant judgment based on the statement of claim. In such a case, the court may require the plaintiff to provide sufficient proof of the claim, in whole or in part, or give judgment based on the statement of claim alone. The defendant may petition the court to cancel a judgment given in the absence of a defence. Such a motion will be granted if the defendant proves that the statement of claim was not properly served on them. Even if the service was duly effected, the court has discretion to set aside the judgment, especially if the likelihood of success of the defence is high. The courts in Israel “do not like” judgments given in the absence of a defence, and they tend to grant motions to cancel such judgments, while compensating the
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