First, it is important to know that it is definitely possible to annul a judgment given in the absence of a defense or appearing for one of the hearings in court, as long as you act immediately upon receiving the judgment.
Our office has helped many clients cancel the judgments given against them (even in very complex cases where the clients were negligent and did not go to court immediately) thanks to a deep familiarity with the legislation and the latest ruling of the Supreme Court, some of which you will read about in this article.
Cancellation of a judgment in the absence of defense or appearance is required when the defendant did not file a statement of defense or did not appear at the hearing to which he was duly invited. In these cases, the plaintiff is entitled to submit a request for a judgment in the absence of a defense or in the absence of an appearance, and in most cases the court will grant the request, as long as the person submitting the request meets the conditions set forth in the rulings of the Supreme Court.
This is one of the reasons why it is important to consult on this matter with an experienced claims lawyer, because most people are not lawyers and do not even know what the conditions are established in the ruling for the annulment of a judgment in the absence of defense or appearance.
A judgment in the absence of a defense or appearance is a judgment as any other, and the plaintiff can turn to the enforcement office if the defendant does not act in accordance with the provisions of the judgment or does not submit a request to cancel the judgment.
Cancellation of a judgment – the regulations you need to know
In order to cancel a judgment in the absence of a defense or appearance through a request to cancel a judgment, you should be familiar with the provisions of the Civil Procedure Regulations , 2018, and in particular the provisions of Regulations 130 and 131, which state as follows:
Rule 130:
A defendant who has not filed a statement of defense within the time set for this or whose statement of defense has been deleted, the court may demand from the plaintiff sufficient proof of the claim, in whole or in part, or give a verdict based on the statement of claim only.
Rule 131:
If the court gave a decision according to one party and the party against whom the decision was given filed a cancellation request within thirty days from the day the decision was delivered to him, the court may cancel it, under the conditions it sees fit;This provision shall not apply to an application to the court under Rule 33(d).
Note that Rule 131 refers to a "decision" and not a judgment. Those who are not familiar with the intricacies may think that this regulation is not relevant to the issue of annulment of a judgment in the absence of a defense, but it is important to also review the definitions section of the civil procedure regulations where you will find that "decision" is defined as follows:
"Decision" – judgment, partial judgment and any other decision;
Cancellation of a judgment – the conditions
The first condition is, of course, that the verdict was given in the absence of a defense (no statement of defense was filed ) or in the absence of an appearance. If a statement of defense has been filed and a verdict has been given, you will have to file an appeal , or in extreme cases, a lawsuit to annul the verdict due to fraud .
The second condition for submitting a request to cancel a judgment in the absence of defense or appearance is that the defendant submits his request within 30 days from the date of receipt of the judgment. If more than 30 days have passed after receiving the judgment from the defendant, submitting a request to cancel a judgment in the absence of a defense or appearance will end in the rejection of the request due to the delay in submitting the request.
In order to avoid a casual rejection of a request to cancel a judgment in the absence of a defense or an appearance which was submitted after 30 days from the date of receipt of the judgment by the defendant, one should submit a request for an extension to submit a request to cancel a judgment in the absence of a defense, accompanied by an affidavit, and explain the reason for submitting the request late.
How to submit a request to cancel a judgment in the absence of a defense
A request to cancel a judgment in the absence of defense or appearance must be submitted in writing, and must be accompanied by an affidavit verifying the factual allegations detailed in the request. Failure to attach an affidavit may lead to the rejection of the application, even if there are weighty reasons justifying the annulment of the judgment given in the absence of a defense or appearance.
In addition, a request to cancel a judgment in the absence of defense or appearance must include documents or data that will help explain why you did not submit the statement of defense on time or why you did not come to the hearing even though you were duly invited. Also, as part of the request to cancel a judgment in the absence of a defense, the defendant must list most or all of his defense claims, in order to show the court that he has a solid defense to the plaintiff's claims.
Please note that according to Rule 131 the court "may" order the annulment of a judgment in the absence of a defense or appearance, that is, it is not obliged. In any case, this is at the discretion of the court hearing the request.
The court's ruling regarding cancellation of a judgment in the absence of a defense or appearance
The ruling of the Supreme Court (A.A. 3255/19 Talia Pevzner v. Yonatan Shafer, judgment of 5/30/2021) which reviews the provisions of the law regarding annulment of a judgment in the absence of a defense or appearance:
…there is another option to request the annulment of a judgment given on a one-party basis, in accordance with what is stipulated in Rule 131 of the Civil Procedure Regulations, 2018-2018 (hereinafter: the new regulations). let them be seen", if a cancellation request was submitted on behalf of the litigant "against whom the decision was issued" within 30 days from the day it was served on him (see, among many: RA 6258/19 Cohen v. Cohen, [published in Nebo] paragraph 7 (3.12. 2019));
This regulation comes in the shoes of regulation 201 of the previous regulations, but for the purpose of our matter here, this change has no material consequence.See: Issachar Rosen-Zvi the reform of the civil court order – Mora Nabukim 475 (Hatshefa-2021)).
This arrangement is based on the fact that a judgment that imposes obligations on a person, without having been given his day in court, and without him having the opportunity to defend himself against the lawsuit against him, is a defective judgment (CA 64/53 Cohen v. Yitzchak, FA 8 395, 397 (1954)).
Therefore, it is determined in the ruling that the tendency will be to order the annulment of judgments of this kind, as long as there is sufficient reason for thelack of defense or appearance, while charging the party requesting the annulment with the costs, according to the circumstances of the case(Rea 1958/00 Nadav v. Salon Mekhri for Machines Washing and television in Beit El Al, P.D. Na(5) 43 (2001); RA 2158/15 Issa v. Sarsour, [published in Nebo] paragraph 3 (6.2.2015)).
Possible reasons for approving a request to cancel a judgment
Cancellation of a judgment in the absence of a defense or appearance can be made for the following reasons: 1. Cancellation for the sake of justice; 2. Cancellation at the court's discretion. Regardless of the reasoning for receiving a request to annul a judgment, the court may charge the applicant (the person who wishes to annul a judgment in the absence of a defense or appearance) to pay court costs, which may sometimes reach very significant amounts (even tens of thousands of shekels).
The ruling of the Supreme Court (REA 8570/21 Abuaziz David v. Adv. Arnon Ephraim, decision of 12.27.2021) regarding the court's reasons for accepting a request to annul a judgment in the absence of a defense or appearance:
The authority to order the annulment of a decision or judgment given unilaterally is fixed in Rule 131 of the Regulations concerning the annulment of decisions given unilaterally, including a judgment given in the absence of a defense (Rule 130 of the Regulations).In this context, two possible paths must be distinguished.The first – annulment 'for the sake of justice', the second – annulment 'at the discretion of the court'.
When the procedure is fundamentally flawed and no legal discovery was made, the judgment will be annulled without giving weight to the strength of the defense's claims and its chances.When there is no dispute that an invention was legally made, the court must be required to consider the cause of the default and the applicant's chances of success in the main proceeding (see: RA 1119/05 Goldsil Ltd. v. Billia Robert Properties and Building Ltd., paragraph 7(2) [published in Nebo ] (27.2.2005) (hereinafter: Goldsil case); and also Uri Goren Issues in Civil Procedure Volume I 920-916 (13th edition, 2020) (hereinafter: Goren)).
…
Even according to the second channel for annulment – based on the 'discretion of the court', there was no reason to order the annulment of the verdict.The district court explicitly stated that the applicant was unable to point out a reason for his failure, and even worse that "the applicant acted in deliberate disregard of the judicial process".
As for the chances of the defense, it was determined that the applicant "filled his mouth with water" in the request to annul the verdict and in the affidavit attached to it "there is not a word in it about the chances of the defense and his claims to the substance of the matter in response to the plaintiffs' claims".Here, yes, for this reason too, there was reason to reject the request to cancel the judgment.…
The authority to annul a judgment in the absence of a defense which is stated, as mentioned, in Rule 131, gives the court the power to condition the annulment on the conditions it deems appropriate to establish.And this is the wording of the regulation:
"If the court has given a decision according to one party and the litigant against whom the decision was given filed a request for annulment within thirty days from the day the decision was delivered to him, the court may annul it, under the conditions it sees fit;
this provision shall not apply to an application to the court according to rule 33(d) )" (emphasis added – S. S.).As for the court's discretion in exercising this authority, according to the ruling, this is a very broad discretion that can be exercised according to the circumstances of the matter (see: AA 436/83 Levy v. Deko, PD M(4) 589, 605- 604 (1986); the Goldsil case, in paragraph 8(3) and Goren, at p. 920).
…
As for the applicant's claim regarding the rendering of a judgment in the absence of a defense, on the basis of a 'notice of rendering a judgment' submitted on June 24, 2021, and not on the basis of a reasoned request for the rendering of a judgment accompanied by an affidavit – indeed, the king's way of submitting a request for the rendering of a judgment in the absence of a defense is as reserved We have Rule 50 of the Regulations – a reasoned request supported by an affidavit.
With that, a perusal of the wording of the notice reveals that it was submitted further to the hearing that took place before the district court and of all places, and this is the main thing – the district court in its decision of November 7, 2021 ordered, at the end of the day, the cancellation of the judgment in the absence of a defense, subject to the payment of costs to the plaintiffs.
His wish is the face of things, even if, so to speak, there was a 'flaw' in the submission of the 'application' for the ruling in the absence of a defense, and I do not make any determinations in the matter, in any case the alleged 'flaw' will be cured by annulling the ruling.
In the matter of annulment of a judgment in the absence of defense or appearance, you can also refer to a more recent ruling of the Supreme Court – RA 7127/22 Tarek Abd Elhi v. Saleh Mansour (judgment dated January 29, 2023), in which it was determined, among other things, as follows:
The authority to order the annulment of a decision or judgment given unilaterally is established in Rule 131 of the Civil Procedure Regulations, 2018-5779. This regulation allows the court to annul such a decision or judgment "under such conditions as it deems fit".
As regards the annulment of a judgment given in the absence of defense, the examination decided between two grounds for annulment: one ground, is the annulment of the duty of justice, due to a defect in the proceedings that goes to the root of the procedure. For the most part, these are cases where the claim was not legally presented to the applicant for the annulment. In our case, since it is not disputed that the claim was legally presented to the applicants, this ground is not is up for discussion.
The second cancellation ground, relevant to our case, is cancellation at the discretion of the court.In this context, two guiding considerations are considered: the first, is the reason for the failure of the applicant to defend himself – whether as a result of contempt of court, or due to a mistake in good faith, misunderstanding or negligence.The second consideration, which is known to be more important, is the defense chances of the annulment applicant.At the basis of this consideration is the view that there is no point in canceling a judgment if there is no chance that its outcome will change after the investigation of the procedure.
However, for this matter it is not necessary to prove a solid defense, but it is enough to show the existence of a defense for the Kourit….
Alongside these guiding considerations, there is another 'overriding consideration' that affects the decision in the cases in question, and it concerns the right of access to the courts, which is denied to the litigant in whose absence the judgment was rendered.Admittedly, this right is not absolute, and it must be weighed against the public interest in the efficient management of the legal system, and against the rights of the opposing party (see: RA 1957/12 Chala v. Cohen, paragraph 11 [published in Nevo] (22.5. 2012) (hereinafter: applicable matter)).
However, the right of access to the courts is very important.The result of giving a verdict against a party without his voice being heard and given his day in court, is difficult.Because of this, it has already been determined that "conducting the judicial procedure while giving both parties the opportunity to present their claims before the court to the substance of the facts is the preferred course of action, while ending the procedure without holding a hearing in the middle of the matter, for example on a way of giving a verdict in the absence of a defense, is "Extraordinary Deliberative Process" …
Accordingly, the ruling shows a liberal approach with regard to requests to cancel a judgment given in the absence of a defense, according to which the court will, usually, grant these requests, and this while "healing" the damage caused to the opposing party or to the public interest through a ruling on costs, as a more proportionate sanction (see: RA 1958/00 Nadav v. A central salon for washing machines and televisions in Beit El Al, Pd Na(5) 43, 48-47 (2001); the case of Ovadia, in paragraph 12; the case of Issa, in paragraph 3).
On the other hand, a decision that leaves a judgment given in the absence of a defense intact, is reserved for extreme cases in which the litigant has shown blatant contempt for the court in his judicial conduct, or when he failed to point out any chances of a defense (applicable matter, in paragraph 15).
