What is the purpose of preliminary arguments in a defense in a civil proceeding?
The purpose of preliminary arguments in a civil case is to get the judge to dismiss the lawsuit without considering the plaintiff's arguments on the merits. Preliminary arguments should be made at the earliest opportunity. In most cases, raising a preliminary argument at a late stage may lead to its dismissal, even if it is justified.
Another type of preliminary claim in a civil proceeding that can be made is intended to make it more difficult for the plaintiff to conduct the lawsuit. For example, a preliminary claim regarding Deposit of security deposit In order to secure the defendant's expenses if and when the plaintiff's claim is dismissed within the framework verdict Final. That is, the defendant asks the court to require the plaintiff to deposit a very significant amount in the court's treasury to secure the defendant's expenses, and if the plaintiff does not deposit the amount determined by the court, his claim will be dismissed (or dismissed, depending on the court's decision).
Preliminary arguments can be raised in a defense in a civil proceeding that deal with the issue of: Local authority or the issue of subject matter jurisdiction. These arguments are relevant to the court's lack of jurisdiction to hear a particular matter. For example: If a Financial claim For the secretariat Magistrate's Court If the claim involves damage exceeding 2.5 million shekels, it can be argued that the Magistrate's Court lacks subject matter jurisdiction to hear this claim (only the District Court has subject matter jurisdiction to hear a monetary claim in an amount exceeding 2.5 million shekels).
Preliminary arguments can be raised in a defense, but a separate preliminary application can also be submitted, even before filing. Defense.
The disadvantage of filing preliminary arguments such as a request to strike out a claim or to dismiss a claim through a separate motion is that if the motion is dismissed, there is a very high probability that the court will order the defendant to pay Legal expenses In favor of the plaintiff.
On the other hand, the advantage of filing a separate application is that sometimes preliminary claims are very focused claims and it is much simpler to file a separate application than to prepare a detailed defense that includes all the defense claims.
Preliminary arguments in a defense regarding the deletion of the statement of claim
To know what preliminary claims can be made in a defense, one must be familiar with the provisions of the Civil Procedure RegulationsThese are regulations that govern everything related to the conduct of civil proceedings, including how they should be conducted. Court hearings.
Issue Deleting a claim Regulated in Regulation 41 of the Regulations, which states as follows:
41(a) The court may order the deletion of a claim at any time on the basis of one of the following grounds:
(1) The statement of claim does not disclose a cause of action;
(2) The letter of claim indicates that the claim is vexatious or vexatious;
(3) The plaintiff persistently, in an unacceptable manner, avoids complying with a provision of these regulations or avoids complying with a decision or order of the court;
(4) Any other reason on which he believes it is appropriate and proper to strike out the claim.
(b) Deletion Claim According to these regulations, it does not constitute a court act.
(c) If the court orders the deletion of a claim under these regulations, the following provisions shall apply:
(1) The hearing of a new lawsuit will continue from the stage at which the current lawsuit was dismissed, unless the court orders otherwise;
(2) The court may impose conditions on the deletion of the claim.
One of the reasons why the judge may order the deletion of the lawsuit is Claim of limitation.
Preliminary arguments in a defense regarding abuse of legal proceedings
Regulation 42 of the Civil Procedure Regulations states as follows:
42. If the court finds that a litigant has abused legal proceedings, it may, on this basis alone, strike out all or part of its pleadings.
Issue Abuse of legal proceedings נבחנה בפסיקה ובה נקבע, בין היתר, כך (ת"א 56695-09-19 רומי יצחק נ' משה אהרוני):
The anchoring of the principle of prohibition of abuse of legal proceedings gives validity to the court's authority to grant appropriate relief when a party acts in bad faith and abuses legal proceedings. However, in light of the sanction stipulated in Regulation 42 of the Rules of Procedure in the form of deleting the pleadings, it should be used with caution as it represents a significant harm to the party whose pleadings have been deleted, particularly when it concerns a defence, which then results in the granting of Judgment in the absence of defense.
This means that Regulation 42 of the Rules of Procedure will only be used when the action is in bad faith on the part of the litigant, or when the purpose of the action is foreign to the judicial process. Hence, not every procedural omission will constitute an abuse of legal proceedings.
לעניין זה ראו דבריה של כב' השופטת דפנה ברק ארז ברע"א 7770/21 Coach Marri N. Ahmed Bariya (Published in Nevo, February 8, 2022) According to them:
However, as is known, the prohibition on the abuse of legal proceedings is not a novelty. This prohibition stems from the principle of good faith, which is a paramount principle in our system, and its purpose is twofold: on the public level – to maintain the integrity and purity of the judicial process, and on the private level – to prevent unfair outcomes between litigants litigating before the courts… The anchoring of these principles in the new regulations is important.
It reaffirms long-standing case law that recognized the inherent authority of the court to grant appropriate relief when a party acts in bad faith and, as stated, abuses legal proceedings. Alongside this, there is also room for caution in the use of Regulation 42 of the Regulations. This is said considering the strength of the sanction stipulated in the regulation – the deletion of the party’s statement of claims. In this context, it is worth mentioning that, as a rule, the court is granted a number of procedural tools when it reaches the conclusion that a party has abused legal proceedings – including dismissing a claim out of hand, preventing a vexatious investigation, establishing a procedural moratorium, and awarding costs (a sanction that is also enshrined in the new regulations – in Regulation 151(c) thereof. See: Engel case, at paragraphs 15-16 and the references therein).
Regulation 42 enshrines a relatively severe sanction that represents a significant harm to the party whose pleadings were deleted, and in particular when it comes to deleting a defense, which effectively means issuing a judgment in the absence of a defense (see: Issachar Rosen-Zvi Reform of the Civil Procedure Code: Moreh Nevokuhim 133 (2021)). Such a judgment affects the defendant both in the specific litigation in which the defense was deleted, and in future litigation, due to the creation of Court action (See: Issachar Rosen-Zvi Civil Procedure 432 (2015)).
Accordingly, this is a sanction that has a real impact on the defendant's right of access to the courts. (באופן כללי, ראו: ע"א 733/95 ארפל אלומיניום בע"מ נ' קליל תעשיות בע"מ פ"ד נא(3) 577 (1997); יורם רבין "זכות הגישה לערכאות – מזכות רגילה לזכות חוקתית" המשפט ה 217 (2001)). Therefore, I believe that using Regulation 42 to strike out a defense should be done with the necessary caution, in cases where it is clear that the criteria for abuse of legal proceedings are met – such as an act in bad faith, or an act whose purpose is foreign to the judicial process (such as silencing or harming the opposing party)… [ibid., paragraphs 17-18].
Preliminary arguments in a defense regarding the dismissal of a claim in special cases
The issue of preliminary arguments in a defense regarding the dismissal of a claim in special cases is set forth in Regulation 43, which states as follows:
43. The court may dismiss a claim at any time due to the existence of a res judicata, statute of limitations, or any other reason on which it believes it is appropriate and proper to dismiss the claim.
כפי שניתן לראות מדובר בתקנה כללית מאוד שמעניקה לבית המשפט שיקול דעת רב בעניין דחיית התביעה. לצורך כך בית המשפט יכול להעזר גם בטענות ההתיישנות. בעניין זה קבע בית המשפט העליון, בין היתר, כך (רע"א 9261/20 בנק דיסקונט לישראל נ' Joint stock company commercial bank privatbank):
As for the claim of limitation, it is indeed appropriate as a general rule to proceed with and examine this preliminary claim, which may bring an end to the litigation between the parties, thereby saving resources for both the parties and the court. (רע"א 6552/20 בנק דיסקונט לישראל בע"מ נ' א. לוי השקעות ובניין בע"מ [פורסם בנבו] (2.12.2020)).
במקרים מתאימים אף רשאית הערכאה הדיונית לקיים מעין "משפט זוטא" בטענת ההתיישנות (ע"א 4683/16 חברת חשמל בישראל נ' עזבון אשר כהן ז"ל, [פורסם בנבו] פסקה 19 (23.1.2019) (להלן: עניין חברת חשמל)).
ברם, בענייננו, בדין סבר בית משפט קמא כי נדרש "בירור עובדתי מעמיק ומורכב" כדי להכריע בסוגיית ההתיישנות, אשר "יהווה חלק משמעותי מבירור התובענה לגופה".
As is known, dismissing a claim outright due to statute of limitations requires taking extra caution while maintaining a delicate balance between the plaintiff's needs to exercise his rights to apply to the courts where there is reasonable justification for delaying filing the claim; and the defendant's needs to be certain of his rights and obligations, to be able to defend himself against a claim, and to protect his interest in expecting not to be sued (which stems from the assumption that refraining from filing a claim for such a long period indicates neglect).; לבין צרכי הציבור בתיעדוף משאבים שיפוטיים ציבוריים (ע"א 2919/07 הוועדה לאנרגיה אטומית נ' גיא-ליפל, פ"ד סד(2) 82, 111-110 (2010) (להלן: עניין גיא-ליפל)).
In conclusion
Preliminary claims in a defense in a civil proceeding are intended to prevent the investigation of the claim on its merits. These are claims that generally do not require a complex factual investigation and can be decided relatively easily.
Some of the preliminary claims that can be made in the defense are detailed in sections 41-43 of the Civil Procedure Regulations.
Preliminary claims in a defense must be raised at the first opportunity. If the defendant does not raise them at the first opportunity, even if it is a correct and justified claim, it will be dismissed if the defendant raises it at a later stage.
