Is there such a thing as a request to cancel a claim?
The concept of a request to dismiss a claim is a concept that is usually mentioned by people who are not lawyers or lawyers, and it can refer to various situations, some of which are relevant to the plaintiff and some of which are relevant to the defendant.
acting Civil Procedure Regulations They do not recognize a procedure called a motion to dismiss a claim, but there are other procedures that are very similar in essence, and they are simply called by different names. Familiarity with the correct procedure will make it easier for you and the judge hearing your motion to understand exactly what your goal is, and will prevent incorrect judicial decisions.
במאמר זה אתייחס למקרים הנפוצים ביותר בהם בעלי דין מעוניינים "לבטל תביעה". שימו לב שחלק מההליכים רלווטניים לתובעים בלבד וחלק מההליכים רלוונטיים לנתבעים בלבד, וחלק מההליכים רלוונטיים לשני הצדדים ביחד.
בכל מקרה, אם אתם לא מיוצגים ואתם מנהלים תביעה במסגרתה אתם שוקלים להגיש "בקשה לביטול תביעה", צרו קשר עם עורך דין על מנת שיבין מה בדיוק אתם רוצים כדי שהוא יוכל לכוון אתכם לבקשה הרלוונטית הנכונה.
Request to cancel a claim – from the plaintiff's perspective
After submission Civil lawsuit or Financial claim There may be various situations in which the plaintiff wishes to terminate the proceedings and no longer pursue the lawsuit against the defendant or defendants.
In this situation, the plaintiff has the following option:
Discontinuation of a lawsuit – Regulation 44 of the Civil Procedure Regulations
Discontinuing a lawsuit is probably the closest equivalent to what non-lawyers or legal professionals mean when they say they wish to file a motion to dismiss a lawsuit.
Regulation 44 of the Civil Procedure Regulations states as follows:
Discontinuation of a lawsuit
44. (A) The court may, at the request of a plaintiff, discontinue a lawsuit, in whole or in part.
(on) Discontinuation of a lawsuit will be by deleting the statement of claim and Regulation 41(b) and (c) will apply.
פסיקת בית המשפט מכירה באפשרות לסרב לבקשה להפסקת תובענה, בין היתר, כי ייתכן שהתובע מנסה לגרום לביטול יתרון שהשיג בינתיים הנתבע בהליך. בעניין זה נקבע במסגרת תאד"מ 68530-07-23 כרטיסי אשראי לישראל בע"מ נ' הדס אורנשטיין, בין היתר, כך:
אקדים ואפנה בענין דכאן לרע"א 7070/14 עזבון המנוח מוחמד מוסטפא יוסף אבו ליל ז"ל ואח' נ' עזבון המנוח שריך עומר אלפהום (14/01/15) – There the court states that The initial tendency is to grant the plaintiff's request to discontinue his claim, based on his perception of sovereignty over it. At the same time, his request must be examined through the prism of fairness and justice and the stage of the proceedings must be examined, as well as the question of whether the defendant has acquired any advantage in the meantime and the plaintiff's entire purpose in discontinuing the claim is to cause that advantage to be nullified. To these considerations, the court also adds the public interest in preventing the waste of valuable judicial time, and in a situation where much effort has been invested and the case is ripe for a decision, it is appropriate that the fruits of the investment not go to waste.
It should be taken into account that in cases where a request is submitted to discontinue a lawsuit, the court may oblige the plaintiff to:Legal expensesThere will be cases in which the court will agree to order the payment of legal costs only if the plaintiff resubmits his claim.
Request to cancel a claim – from the defendant's perspective
When discussing a request to dismiss a claim from the defendant's perspective, this can refer to completely different situations.
Request for outright dismissal (deletion or rejection of the claim)
When a defendant files Defense Sometimes he may request the removal of Claim On the face of it (the request can be submitted even before the defense is filed). The reasons can refer to situations relevant to the deletion of a claim or To dismiss a claim.
These issues are regulated in Regulations 41 – 43 of the Civil Procedure Regulations:
41. (A) The court may order the deletion of a claim at any time on the basis of one of these 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.
(on) Deleting a claim under these regulations does not constitute a court action.
(third) If the court orders the deletion of a claim under these regulations, the following provisions will apply:
(1) The hearing of a new lawsuit will continue from the stage where the current lawsuit was dismissed, unless the court orders otherwise;
(2) The court may make the deletion of the claim subject to conditions.
42. If the court believes that a litigant has abused legal proceedings, he may, on this basis alone, delete all or part of his pleadings.
43. The court may dismiss a claim at any time due to the existence of Court action, התיישנות Or for any other reason, on which he believes it is appropriate and proper to dismiss the claim.
The essential difference between deleting a claim and dismissing a claim is that in a situation where the court orders the deletion of a claim, the claim can be resubmitted, whereas after a claim is dismissed, a res judicata occurs and even if the plaintiff resubmits the claim, it will simply be dismissed out of hand.
Request to annul a judgment
Another case in which a defendant who is not a lawyer or attorney may consider a request to dismiss a claim is when that defendant actually wishes to file a Request to annul a judgment Given unilaterally (failure to appear at the hearing) or Request to annul a judgment In the absence of protection.
A request to annul a judgment is not appeal – These are completely different procedures to which completely different rules apply, but in certain cases a person who is not familiar with the world of law may mention a request to cancel a claim and actually refer to filing an appeal.
A request to annul a judgment is regulated in Regulation 131 of the Civil Procedure Regulations:
131. If the court has given a decision ex parte and the party against whom the decision was given has filed a motion to annul it within thirty days of the date on which the decision was served on him, the court may annul it, under such conditions as it deems fit; this provision shall not apply to an application to the court under Regulation 33(d).
This means that a request to cancel a judgment (and not a request to cancel a claim) can be filed within 30 days from the date of filing. The verdict To the defendant.
Request to cancel a claim – from the perspective of both parties
כאשר שני הצדדים מדברים על "בקשה לביטול תביעה" לרוב הם מדברים על מצב שבו שניהם לא מעוניינים יותר להמשיך ולנהל את התביעה. מקרה נפוץ שכזה הוא כאשר הצדדים הסכימו על compromise.
במקרה כזה, לרוב, מנוסח הסדר פשרה שכולל את כל הסכמות הצדדים, והוא נחתם על ידי שני הצדדים ומוגש לצורך קבלת פסק דין שנותן תוקף להסדר הפשרה. ברגע שניתן פסק דין התביעה "מתבטלת" (מסתיימת).
A similar situation occurs when the parties reach a settlement through mediation. At the end of the mediation, the parties or the mediator will notify the court whether they have reached an agreement or not. If the parties have reached an agreement, the court case will end.
In conclusion
A request to cancel a claim is not a legal term, but rather a term generally used by people who are not lawyers or attorneys.
A request to cancel a claim can refer to situations that are relevant only to the plaintiff or only to the defendant, and sometimes to both the plaintiff and the defendant together.
In a situation where the plaintiff files a request to cancel a claim (discontinuance of the claim), the court is not required to accept his request, and any court may condition the termination of the claim on the payment of costs to the defendant.
