Hostname: page-component-586b7cd67f-tf8b9 Total loading time: 0 Render date: 2024-11-27T15:44:44.395Z Has data issue: false hasContentIssue false
  • English
  • Français

Abuse of Process

Published online by Cambridge University Press:  12 February 2016

Shalev Ginossar
Get access

Extract

Legal procedure does not enjoy great popularity. The layman resents it, since it prevents him from conducting his case by himself and forces him to resort to professional advocates. But even the jurist's attitudes to procedure is far from positive: he sees it as a mere “adjective” branch of the law that detracts from the importance of “substantive” law. Moreover, it has often emerged that the labyrinth of procedure does not lead to the triumph of the substantive law, but rather to the perversion of justice. A person expert in procedure has, as it were, wide scope in which to prevent, or, at least to distort, the revelation of the truth.

From time to time, a judge may be heard speaking out against such abuse of legal process, but mostly, his is a voice crying out in the wilderness.

Type
Articles
Information
Israel Law Review , Volume 17 , Issue 4 , October 1982 , pp. 401 - 466
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1982

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Winfield, P.H., The History of Conspiracy and Abuse of Legal Procedure (Cambridge U.P., 1921).Google Scholar

2 Winfield, P.H., The Present Law of Abuse of Legal Procedure (Cambridge U.P., 1921).Google Scholar

3 For losing his case, a person had to pay not only with his money, but also with his blood, i.e., the tongue that uttered a false claim would be cut out. These laws were renewed after the Conquest, in the reign of Henry I (Sec Winfield, supra n. 1, at § 4, p. 4).

4 In his book, Winfield describes the development of the numerous remedies, which were grounded in the criminal law and in tort law and which were practised in England—some exist to this very day, such as writ de otio et alia, conspiracy, embracery, barratry, maintenance and champerty. These last two are still mentioned in Israeli case law.

5 Winfield, op. cit.

6 Ginossar, S., Law and Justice (Harish, J., ed., Tel Aviv, 1958, in Hebrew) 75.Google Scholar

7 Viz. Chap. TX, Article 1, secs. 236–267 (Penal Law, 1977, L.S.I., Special Volume).

8 Ibid., sec. 237.

9 Sec. 238.

10 Sec. 239.

11 Sec. 240.

12 Sec. 242.

13 Sec. 243.

14 Sec. 244.

15 Civil Wrongs Ordinance (New Version) secs. 60–61 (2 L.S.I. [N.V.] 5).

16 Only 207 convictions for the offences of either perjury or false information furnished to a competent body during the year 1975, Criminal Statistics for 1975 (Central Bureau of Statistics, Jerusalem, 1978) Table 19.

17 Evidence Ordinance, sec. 53 (2 L.S.I. [N.V.] 198).

18 Courts Law, 1957 (11 L.S.I. 157 at 165 as amended 18 L.S.I. 56).

19 It is clear that despite the duality of powers, they should not be applied cumulatively. On the choice between the two responses—criminal indictment or summary procedure, see Harnon, E., Contempt of Court by Disobedience (Jerusalem, 1965, in Hebrew) 43–7.Google Scholar

20 The means of prevention are not all internal in the sense that their application is direct, for some entail the initiation of a separate proceeding. We have nevertheless included them in the list of procedural remedies, since they were created by the adjective law itself.

21 Criminal Procedure Law [Consolidated Version], 1982 (S.H. 1043, p. 43), sec. 27 and the Appendix, and the Defamation (Prohibition) Law, 1965, sec. 8 (19 L.S.I. 254 as amended 21 L.S.I. 132). The filing of a private complaint can serve a vexatious purpose, whereas “when the accusation is brought by the State, there is no suspicion of abuse of process for the purpose of extortion” (Ben-Ito, H., “The Private Complaint” (1969) 25 HaPraklit 521Google Scholar, 522 § 4; and cf. below § 8, n. 43.

22 Criminal Procedure Law [Consolidated Version], 1982, sec. 231.

23 Ibid., sec. 71.

24 Secs. 11–12.

25 Sec. 62.

26 Secs. 33–50.

27 Secs. 51–57.

28 Sec. 149 and see particularly the provisions on autrefois acquit or convict which are equivalent to the defence of res judicata (sub-sec. (5), cf. below n. 32) and Prescription (sec. 8, cf. below, n. 34).

29 See Harnon, E., “On the Right to Remain Silent” (1969) 1 Mishpatim 95Google Scholar, and Anon. v. Disciplinary Tribunal of Civil Servants et al. (1969) (II) 23 P.D. 421, 426.

30 “The criminal procedure, in its rales, contains a screen to protect the accused from perversion of justice. The aim is to afford the accused the full measure of fair protection. But…” (from the words of the then President, Dr. Smoira, in Sylvester v. A.G. (1948) 1 P.D. 5, 18, § 17). The laws of evidence even provide a certain degree of protection for outsiders, and particularly witnesses, against harassment (rules of immunity, protection of minors, prevention of unfair examination under the Amendment of Procedure (Examination of Witnesses) Law, 1957 (12 L.S.I. 21). In this article, we will not consider the injuries to a person who is not a litigant, except with respect to attaching property of a “stranger” (see §§ 37 ff. below).

31 Civil Procedure Rules, 1963 (hereinafter: C.P.R.) rr. 105–106.

32 On the principles of finality and res judicata, see Ginossar, S., Law and Justice, supra n. 6 at § 25 ff.Google Scholar The rule of “nemo debet…” is repeatedly invoked in all the case law on this matter (see Harnon, E., “Res Judicata and Identity of Actions” in (1966) 1 Is.L.R. 539, 543Google Scholar, who quotes (on p. 542) the following section from an English precedent of 1599, as per Lord Coke: “If there shall not be an end to suits, then a rich and malicious man would infinitely vex him who hath right by suits and actions; and in the end (because he cannot come to any end) compel him to yield to his charge and vexation and relinquish his right (Ferrer v. Arden, VI Coke 7a).” Harnon believes that another aspect of the rule, based on the public interest, is even more important than protecting the opponent from nuisance, since the vexed litigant is entitled to relinquish this defence and it is possible to compensate him by awarding costs (op. cit., p. 546); but in our opinion, this consideration is not convincing, particularly in the civil sphere. For the same reason, a plaintiff is not allowed to split his claim (rr. 44–45), and cf. Zvi & Zalman Hochman v. Menahem Michaeli Levital (1969) (II) 23 P.D. 52; and if he has been given leave to discontinue a subsequent action on the same cause may be stayed until the costs of the former action have been paid (r. 155). And cf. r. 490 which distinguishes between an action which has been dismissed and one which was struck out. The multiplicity of abortive proceedings brought in the name of one person is a consideration which may be weighed in order to declare him a “vexatious litigant”; see below § 8, n. 43; and see Re Vernazza [1959] 2 All E.R. 200 D.C. On the renewal of actions as typical of nuisance, see further Clerk, and Lindsell, , On Torts (15th ed., 1982) § 18–45, p. 882Google Scholar; Restatement of the Law of Torts (Second) (1977) § 679. See also Ginossar, S., “Renewal of Actions” in Studies in Law (Scripta Hierosolymitana, vol. 5, Jerusalem, 1958).Google Scholar

33 Sussmann, J., Civil Procedure (Tel Aviv, 4th ed., 1973, in Hebrew) § 134, pp. 127–8.Google Scholar As opposed to this, the plaintiff may file his several causes of action in separate suits (r. 48), and in spite of the connection between them, this does not constitute nuisance to a person who is sued several times for the same matter (cf. Rahel Raviah v. Moshe Yehezkeli (1969) (II) 23 P.D. 141).

34 Of the three reasons that have been put forward as underlying the principle of prescription, the first two stem from concern over avoiding hardship for the defendant who cannot be expected to “preserve his evidence and proof for too long a period”, and who, because of the “rhythm of life in modern times”, it entitled “to know what are his rights and what his obligations” (Objects and Reasons, , H.H. 5717, p. 280Google Scholar).

35 See Courts Law, 1957, secs. 19(b), 29(b) and 8(b).

36 See e.g. rr. 394, 483, and Procedure in Further Hearings Regulations, 1963, r. 12.

37 See below, §§ 35–36 and 41.

38 R. 105(a)(1), and cf. Criminal Procedure Law, supra n. 21, sec. 149(4).

39 Criminal Procedure Law, secs. 149–150.

40 Ibid., secs. 86–88; Abdul Hadi v. Muflah (1950) 3 P.D. 13, 23–4; Jacob and Isaac Mizrahi v. A.G. (1951) 5 P.D. 1504, 1510–5; Andrews, J.A., “Joints Trials” (1967) 30 Mod. L.R. 645.CrossRefGoogle Scholar

41 Penal Law, 1977, sec. 39.

42 R. 96, and cf. r. 143(1).

43 Active “prosecution mania” is no less serious a mental disturbance than passive “persecution mania”. In England, the court is authorized to declare a person to be a “vexatious litigant”, who will henceforth no longer be allowed to initiate any action without obtaining special leave (Supreme Court of Judicature (Consolidation) Act, 1925, sec. 51). In Israel, too, there may be such maniacs as the one who, within five years, instituted proceedings against 48 different important personalities, all of which (save one) were dismissed: see Re Chaffers (1897) 45 W.R. 365. From the psychiatric point of view, the litigious paranoid is described as a person who “repeatedly hales opponents into court to demonstrate to all the world that he has been wronged… No court of law can ever silence accusations that stem from the pathological super-ego” (Arieti, American Handbook of Psychiatry (N.Y., 1969) vol. 3, chap. 25, by Norman Cameron, at p. 520). On the basis of her personal experience, H. Ben-Ito J. describes the conduct of those disturbed persons “well-known to the courts”, to be driven by their disease: “Sometimes they bring dozens of suits against the same person, making his life hell. In the course of the proceedings, they turn the court room into a circus. And the court is absolutely helpless…” (“The Private Complaint”, supra n. 21).

44 If the order to give particulars so requires, as is customary in England (see Odgers, , On Pleading and Practice, (22nd ed., 1981) 158Google Scholar).

45 Rr. 397, 483. And cf. the refusal of the court to cancel a judgment given in the absence of the defendant, in spite of the defendant's chances of proving his defence, because of his contempt towards his “duty as a litigant”—as distinguished from simple negligence or neglect (Kibbutz Hameuhad Building Industry and Co. v. Southern Company Ltd. (1969) (II) 23 P.D. 721, 723).

46 Penal Law, 1977, sec. 79.

47 Ibid.

48 “Due to the conduct of the case” (Parcel 390 Block 6213 Co. Ltd. et al., v. A.G. (1962) 16 P.D. 2764, 2766).

49 It should be noted that there is no authority to award costs in a criminal appeal, even in the case of a vexatious appeal. See A.G. v. Zeligman (1950) 4 P.D. 86: this was the appeal of an accused convicted on the basis of his own confession: of the twelve grounds for appeal, only one was held to have any mlerit, and the accused was ultimately acquitted “due to pot luck, because of a mere technical error on the part of the magistrate, an error for which he himself… was to blame” (ibid., at 88). And see Parcel 390 etc. v. A.G., supra n. 48; Eilai Bakery Ltd. v. State of Israel (1963) 17 P.D. 843.

50 Penal Law, 1977, sec. 80.

51 A.G. v. Yaakov David (1955) 9 P.D. 1823, 1827. A conviction by a lower court does not by itself exclude the possibility that the appeals court will find that there was no ground for the charge (see Yehuda Bergman (Bartel) v. A.G. (1964) (II) 18 P.D. 563, 567).

52 Penal Law, 1977, sec. 81. And see, before the enactment of that provision Avraham Slojers v. Magistrate's Court Magistrate, Jerusalem, (1962) 16 P.D. 2804. According to its text, sec. 81 applies to the complainant, as opposed to the “private complainant” who himself is party to the case and with respect to whom the law makes no provision regarding costs. This lacuna was overlooked by the legislator and by the court (but see Tova David v. Leah Weisblat (1965) (IV) 19 P.D. 93).

53 Court (Fees) Rules 1968, r. 18(8); but cf. the Appendix, Sec. 5, item (a).

54 Criminal Procedure Law, sec. 145, and sec. 143 (explaining the contents of the charge sheet); sec. 196 (advising on the right of appeal); secs. 140–142 (translation at the expense of the State); sec. 131 (notice of proceedings to absent accused).

55 Here are some probable reasons: (a) Civil litigation requires every party involved therein to pay a court fee (Court (Fees) Rules, rr. 2, 3(a)). (b) Every party must pay, or give security for, the costs and fees of his witnesses, including the experts he wishes to summons (r. 195). (c) In particular, a civil litigant will not usually be able to conduct his case himiself; and if he wishes to appoint a lawyer to represent him in court, he will also have to secure his fees, because no lawyer will be appointed for him at the expense of the State. Thus, the financial burden involved in a civil case is usually far heavier than in a criminal case.

56 R. 13; see Sussmann, Civil Procedure, supra n. 33, § 129; Ta'am Haim Ltd. v. Yaffa Ofri (1957) 11 P.D. 550.

57 Cf. Moshe Dimenstein v. Israel Latin Americo Co. Ltd. and Nahman Ram, Adv. (1965) (III) 19 P.D. 391; Raphael Shapiro v. Meir Segel (1967) (I) 21 P.D. 491.

58 English authorities are to the same effect. Thus, it was held in Andrew v. Grove [1902] 1 K.B. per Channel J., at p. 628: “(This) discretion, like any other discretion, must, of course, be exercised judicially, and the Judge ought not to exercise it against the successful party, except for some reason connected with the case” (per Viscount Cave in Donald Campbell & Co. Ltd. v. Pollak [1927] A.C. 732, at pp. 811, 812), such as “the conduct of the parties to see whether either of them had in any way involved the other unnecessarily in the expense of litigation” (per Bowen L.J. in Jones v. Curling (1884) 13 Q.B.D. at p. 272).

59 R. 471 purports to make the said right to examine a declarant on his affidavit, conditional upon the application being made in “good faith”. The Ordinance merely assumes the demand to be made bone fide but, apparently, it does not allow the question to be raised until after the interrogation has taken place. Inasmuch as these provisions are incompatible, that contained in the Ordinance obviously prevails, so that any possible abuse will not be defeated by a preventive provision, but only by way of compensation.

60 Evidence Ordinance, secs. 17(b) and 26(b).

61 Civil Wrongs Ordinance, sec. 83(b); cf. above, § 6.

62 Execution Law, 1967, sec. 9(b) (21 L.S.I. 112). We will point out that evaluation of the plaintiff's good faith may be quite delicate, as the following two points must be considered: (a) No process of execution (and especially no combination of processes) is taken without the approval of the Chief Execution Officer, who is empowered to prevent the taking of process which is not in good faith (sec. 8). (b) A process—or a combination of processes—which may seem excessive with respect to a single creditor, may prove quite reasonable or even inadequate when there are other competing creditors over whom he has no priority (sec. 76).

63 In Israel, defendants do not feel inclined to take advantage of their right to pay money into court in satisfaction of a claim so as to induce the plaintiff to take the money even when it represents only a part of the amount of the claim. If the plaintiff accepts the defendant's offer, he will still be allowed to ask for an order for the costs “incurred until the date of paymjent” (r. 231). Whether the case terminates by such a compromise or after a normal hearing, the court, when exercising its discretion with respect to costs, “shall take into account both the fact that the money has been paid into court, and the amount of such payment” (r. 235) This careful investigation as to the reasonableness of the costs is most developed in England (see Odgers, , On Pleading aiid Practice, supra n. 44 at 379–380Google Scholar; The Mona, 1894 at p. 268; Griffiths v. School Board of Ystradyfodwg 24 Q.B.D. 307). In Israel, too, many actions might possibly end in compromise as a result of paying money into court if such payment were covered by the same secrecy as that obtaining in England (0. 22, r. 7 R.S.C.).

64 Rr. 108(b) and 109(b). Incidentally, these provisions are incompatible with the so-called “right” of a civil litigant to deny a fact which he knows to be true. And therefore we cannot condone the practice of using this right as “perfectly legitimate tactics” (for the opposite view, see Sussmann, , Civil Procedure (4th ed.), §§ 242–3Google Scholar and the sources there).

65 R. 475 (in fine); cf. r. 304 (provisions concerning the costs of an application ex parte); and r. 106(2) awarding the costs of the action dismissed in limine on application of the defendant.

66 Barak, A., Cheshin, M. and Englard, I., The Law of Civil Wrongs: The General Part (Tedeschi, G., Ed.) (Magnes Press, Jerusalem, 1970, in Hebrew) § 7, p. 8Google Scholar (hereinafter referred to as Civil Wrongs).

67 The Courts often express themselves in the following style: “The defendant may be compensated with costs for the fact that he was harassed” (as per Sussmann J. in Construction Aggregates Corporation et al. v. Dead Sea Industries (1969) (II) 23 P.D. 157, 162); because “we know of the wonder drug which cures such wounds, and its name is costs” (Olamit Co. v. Tadir Co. et al., (1951) 5 P.M. 232, 237); and cf. Sussmann, , Civil Procedure, § 281 ff.Google Scholar In the case of Wilmowski v. Assessing Officer ((1964) (IV) 18 P.D. 729), and despite the disagreement which arose concerning the nature of the lawyers' liability to bear the costs, all the judges agreed on its compensatory nature; in the opinion of President Agranat, it also has a penal or quasi-penal aspect (see below, § 46).

68 In the words of the definition of “action” in r. 1.

69 Our attention has been drawn to the words “nuisance to the litigants and to the courts” in an article by Evenor, H., “On Interrogation of Witnesses: Revealing the Truth and Nuisance” (1969) 25 HaPraklit 513, 518.Google Scholar

70 Civil Wrongs Ordinance, secs. 42–48.

71 Cf. n. 69 above “nuisance… to the court”.

72 But not exclusively for his benefit, for it is possible to compensate the Treasury for the damage caused to the public as a result of such nuisance. R. 12 of the Court (Fees) Rules authorises the court to impose within certain limits an “additional fee” on a litigant who, in the opinion of the court, “caused any process to be unduly lengthened or delayed by groundless arguments or in any other manner”, and such additional fee will not be included in the legal expenses of the party who paid it. The underlying idea is clear: every fee is, by its nature, a payment required from the individual in return for a public service provided by the State (although “the causal connection between the payment and the service does not make the fee into a “payment” in the commercial sense of the word”: see Witkon, A. & Neeman, Y., Tax Law (Schocken, Jerusalem, 4th ed., 1969, in Hebrew) 6Google Scholar). But the litigant who abuses the judicial apparatus thereby causes damage to the State, in that he wastes the court's time, and the fee that was set for reasonable, fair conduct ceases to be adequate. It is possible that the bail that is required for releasing a detainee is also designed to prevent vexatious behaviour: the amount of bail is predetermined according to the extent of the maximum estimated damage that will be caused to the prosecuting State if the released detainee fails to appear, and in this case the court will consider the reason for non-appearance and its circumstances in order to decide whether to forfeit the bail, wholly or in part, if at all (Criminal Procedure Law, sec. 48; Criminal Procedure (Arrest and Searches) Ordinance (New Version), 1969, sec. 14 (2 L.S.I. [N.V.] 30)).

73 See Cheshin, M. in Civil Wrongs, §§ 63–64Google Scholar based on his article on “The Law of Damages and the Law of Heads of Damage in Israeli Law” (1969) 1 Mishpatim 364).

74 See § 11 at n. 52 above.

75 Cf. Haled Shehada v. Oman Ibrahim et al. (1966) (IV) 20 P.D. 617; but see Postscript to this article.

76 M. Landau, reviewing the book of Millner, M. A., Negligence in Modern Law (1967)Google Scholar in (1969) 1 Mishpatim 661.

77 Ibid., at 662.

78 Ibid., at 661: we are referring to Donoghue v. Stevenson [1932] A.C. 562.

79 Ibid., at 619.

80 M. Landau, ibid., at 662; the reference is to Hedley Byrne v. Heller [1964], A.C. 465. For a detailed discussion of the problem, see the sources mentioned in n. 73 above.

81 Kornfeld v. Shmuelov (1967) (I) 21 P.D. 310, as per Halevy J. at 324, § 2.

82 Kibbutz Hameuhad Building Industry and Co. v. Southern Co. Ltd. (1969) (II) 23 P.D. 721, 726.

83 This definition is taken from Prosser, , Handbook of the Law of Torts (4th ed., 1971) § 121, p. 856Google Scholar: “…misusing or misapplying process justified in itself for an end other than that which it was designed to accomplish”. And see Clerk, and Lindsell, , On Torts (15th ed.), 880Google Scholar; Street, , The Law of Torts (6th ed., 1976), p. 400Google Scholar; Restatement of the Law of Torts (Second) (1977) vol. 3, § 682.

84 Chesin, M. in Civil Wrongs § 77Google Scholar, (4) and (5).

85 Tedeschi, G., “Personal Injury without the Use of Force and ‘Malicious Negligence’” (1967) 23 HaPraklit 170, 180 ff.Google Scholar

86 As per Landau, M., (1969) 1 Mishpatim 662Google Scholar; and see Cheshin, M. in Civil Wrongs § 66.Google Scholar

87 Relief given in the form of striking out of a process or of overruling of a plea (such as objection to a question to witness or to his answer thereto) is non-enforceable in the execution office (save for costs) and it can therefore be viewed as declaratory (Zamir, I., The Declaratory Judgment (London, Stevens, 1962) 1–2.Google Scholar

88 Cheshin, M. in Civil Wrongs, § 82, p. 107.Google Scholar Incidentally, in the above-mentioned definition (n. 66) which is based on Winfield's formulation (“redressible by an action for unliquidated damages”), the term “action” was mysteriously omitted; and cf. in Civil Wrongs, the heading for § 5: “The Remedy: An Action for Compensation”.

89 Sussmann, § 443; Aharon Zvi Safrai v. Yonah Nota, (1950) 5 P.E. 269, 273. The trend to compensate the successful litigant is evident even when that litigant is himself a lawyer who “acts in person or through his firm” (r. 480), or the State “when it is represented by the Attorney General or his representative (Civil Procedure Amendment (the State as Litigant) Law, 1948, sec. 9) although the obligation does not refer to actual expenses, but only to “the same costs as if he had employed an advocate”.

90 This may be the main advantage of imposing an “additional fee” on both the litigants for the benefit of the State, which has in fact, if not in theory, a semipunitive character. Cf. above n. 72 and also the comments of H. Cohn J. at the end of his opinion in Kibbutz Hameuhad Building Industries and Co. v, Southern Company Ltd. (1969) (II) 23 P.D. 721, 726.

91 Tort law as opposed to penal law—to the extent that this distinction was recognized in those days.

92 Cf. above, § 2.

93 Thus, for example, no one can be blamed for denying his responsibility, since this is inherent to the right to defend an action in court. But, with all due respect, the Supreme Court may have been overly lenient to a defendant who denied his responsibility without justification and thereby caused the proceedings to be protracted during two superfluous court sessions, on the ground that “in any case, lawyer's fees are based on the presumption that the other party denies the claim”: as if official sanction were thus given to nuisance to an opponent (if indeed there was such nuisance)! (State of Israel et al. v. Yehiel Dahan et al., (1967) (II) 21 P.D. 128, 138).

94 See Solus, H. et Perroz, R., Droit Judiciaire Privé, vol. 1 (Paris, 1961), § 114, p. 112Google Scholar, but might it nevertheless be justified to award costs, without nuisance or vexation, for the sake of “social engineering”?] See Barak in Civil Wrongs, § 18, p. 26.

95 Cf. Pottermilk v. Peled ((1969) (II) 23 P.D. 385, 388): litigant's breach of his promise not to take control of the disputed property by force.

96 Justice Dunkelblum once ruled that “imposing costs on a person who transgresses a formal regulation should… usually be sufficient punishment…” (Safrai v. Nota (1950) 5 P.E. 269, 273). After him Judge Zeltner repeatedly attempted, in the Tel Aviv District Court, to use the instrument of “punitive costs”. He first did so against a defendant who, unable to raise any serious defence, played with “delaying tactics” so as to gam “credit which he would not have obtained elsewhere”: the judge ruled that “the court must not become a banking institution unwillingly lending the money of a party at a low rate of interest, without security and for an extended period of time” (Miller v. Mo'il (1952) 6 P.M. (extract) 70). This decision was upheld on appeal (Mo'U v. Miller (1954) 15 P.E. 58, 61).

In a second instance, the defendant unduly delayed the proceedings and caused the court unnecessary work. At the end of his decision, Judge Zeltner noted: “The astuteness of the lawyer in following such a strategy of defence cannot conceal the actual conduct of the defendant which deserves to be taken into account in determining the costs” (Municipality of Ramat Gan v. Benjamin Tik (1952) 8 P.M. 347); but this time, the amount of the costs was reduced on appeal because of their punitive nature (Benjamin Tik v. Municipality of Ramat Gan (1955) 9 P.D. 956, 958).

In a third case, Judge Zeltner awarded special costs against a defendant because of attempted “extortion” and finding that this defendant had “no idea of the sanctity of contract” he decided it was necessary to eradicate such mentality. But here again, the Supreme Court held on appeal that “costs should not be given a penal function, nor should they serve as a vehicle for expressing anger and reprobation” (Bernovich v. Zimmerman (1954) 8 P.D. 1245, 1253 (majority opinion). And yet, it is generally agreed that the conduct of the parties must be taken into consideration for the purpose of awarding costs (Dan v. Moshe Klein (1954) 8 P.D. 370). Goitein J. himself, in Benjamin Tik. v. Municipality of Ramat Gan, feld the need to stress that in that case, the appellant “did not trouble the Court, with superfluous evidence or lengthy arguments… and that his conduct and his defence… contained nothing which could impinge the reputation of the Municipality” (the plaintiff). See also Josef Abba v. Moshe Livne et al. (1969) (II) 23 P.D. 23; Pottermilk v. Peled (1969) (II) 23 P.D. 385. Moreover, when imposing costs on the lawyer personally, the Supreme Court did detect that their compensatory was not exclusive of a penal aspect (Haim Rakbitz and Haim Wilmowski v. Assessing Officer, Gush Dan. (1964) (IV) 18 P.D. 729 (see below § 46, n. 202 and § 48, n. 217).

97 Reis v. Kashmon and Dan (1969) (II) 23 P.D. 639.

98 Ibid., at 643.

99 “The loss of peace of mind is subjective suffering which is not of the type of damage for which a person is entitled to compensation in an action for tort” Benjamin Tik v. Krinizki et al., (1961) 15 P.D. 237, 245); and cf. Civil Wrongs Ordinance, sec. 4.

100 The first malicious prosecution case (that of Benjamin Tik) was brought in 1958 when a building was demolished by the Ramat Gan Municipality on its behalf. The defendants pleaded that the demolition had been performed in execution of a demolition order delivered by the magistrate in a criminal case brought against the plaintiff for building wthout a permit. In the action itself, and in the way in which it was conducted, there was no lack of vexation (see (1961) 15 P.D. 970, 972; and between the same parties, see (1955) 9 P.D. 1956)—and possibly even mutual vexation… (cf. n. 90 above). Thus the proceedings became needlessly and disproportionately entangled, and the case reached the Supreme Court on no less than three occasions (1959) 13 P.D. 1569; (1961) 51 P.E. 98; (1962) 16 P.D. 2636); and see, on the same matter, (1960) 14 P.D. 1666; (1960) 14 P.D. 2489; (1961) 15 P.D. 237). On another occasion, an action in tort was filed on the ground of the defendant's refusal to agree to the demolition of a wall, such refusal being supported by a temporary injunction issued by the Magistrate's Court. The District Court dismissed the action because of the plaintiff's attempt to take the law into his own hands; his appeal was dismissed for the additional reason that the action was, in substance, an action for malicious prosecution and, as such, bound to fail (Meir Teichman et al. v. Arieh Leib Manovich (1969) (I) 23 P.D. 482).

It is therefore not surprising that an injured party will prefer to seek his remedy in some other tort, such as false imprisonment or defamation (cf. Josef Abba v. Moshe Livne et al. (1969) (II) 23 P.D. 23, in which both the action and the appeal were dismissed as “utterly groundless” and “penal” damages were awarded in the appeal, op. cit., p. 27).

101 Criminal Procedure Law, secs. 11–12.

102 Civil Wrongs Ordinance, sec. 7.

103 Thus, for example, in a case of criminal trespass, which was branded as one of “public scandal”, the court sentenced the accused to a modest fine of IL 50 (Joshua Proshanski et al. v. Benjamin Tik (1960) 14 P.D. 1666).

104 See above, n. 21.

105 Civil Wrongs Ordinance, sec. 13.

106 Ibid., sec. 14.

107 Ibid., sec. 12.

108 cf. sec. 62.

109 n will be recalled that in England and in the United States, the lawyer who lodges his client's complaint or who assists himi in submitting it, will be held liable, if he knew that there was no “probable cause” for complaint, Johnson v. Emerson (1871) L.R. 6 Exch. 329; Prosser, , Law of Torts (4th ed.), 838Google Scholar; cf. Chamber of Advocates (Professional Ethics) Rules, 1966, sec. 9 (3), under which the lawyer is bound to affix his name to every complaint which he drafts or helps draft for his client.

110 In the Hebrew text of the New Version, the term accidentally appears twice, but the mistake was later corrected (S.H. 1972, p. 3).

111 In the words of Clerk, & Lindsell, , On Torts (11th ed., 1954) 858Google Scholar [15th ed., 1982) 965–6] quoted by the late President Olshan in Krinizki, Municipality of Ramat Gan et al. v. Benjamin Tik (1959) 13 P.D. 1569, 1572.

112 We are referring here in particular to the inadmissibility of a decision in a criminal case as evidence in a civil case, according to the ruling in Tenenholz v. Poplovich (1954) 8 P.D. 1570, and also in Marciano v. Badan (1967) (II) 21 P.D. 285; and cf. Friedman, D., “A Criminal Decision as Evidence in a Civil Case” (1969) 25 HaPraklit 92–101 and 372–91.Google Scholar But the discrepancy has now been eliminated when the Evidence Ordinance was amended in 1973 by addition of secs. 42A–42E (27 L.S.I. 265). See Ginossar, S., “The Use of Criminal Judgments as Evidence in Civil Cases” (1975) 10 Is.L.R. 242.Google Scholar

113 On 26 March, 1961, he was convicted again by the Magistrate for building without a license, although this time the demolition order formerly delivered was neither maintained nor renewed … Benjamin Tik v. Krinizki (1962) 16 P.D. 2636, 2639. See supra n. 100.

114 Following the misplacement of the comma in the official Hebrew translation of the original Criminal Code Ordinance, 1936, the text of sub-section (2) in sec. 123 was misleading.

115 The concept of causality underlies every civil wrong. Probably the terms “reasonable grounds” as used in English law, would have been preferable. See Hicks v. Faulkner (1878) 8 Q.B.D. 167, 171 per Hawkins J.; Salmond, and Heuston, , The Law of Torts (18th ed., 1981) § 155, p. 392Google Scholar; Prosser, p. 841.

116 It has been noted that the terms “reasonable and probable” should not be construed separately and cumulatively, but as expressing one single concept. (Fleming, , The Law of Torts (Sydney Law Book Co., 5th ed., 1977), p. 604Google Scholar, n. 15: “There is no distinction between these adjectives…”).

117 England in Civil Wrongs, §§ 104–106, and especially nn. 4 and 19; Shapiro v. Lamorta (1923) 130 L.T. 622, per Scrutton L.J.: “The terms ‘malice’ and ‘malicious’ have caused more confusion in English law than any judge can hope to dispel”.

118 Thus Fleming suggests the term “improper purpose” (p. 608).

119 Brown v. Hawkes [1891] 2 Q.B. 718; Johnson v. Emerson (1871) L.R. 6 Exch. 329, per Kelly B. at 398–9; Clerk & Lindsell, §§ 18–31, p. 875; Prosser, p. 848.

120 Cf. supra text at n. 52.

121 Courts Law, 1957, sec. 9(c).

122 Civil Wrongs Ordinance, sec. 56.

123 Teichman v. Manovich (1969) (I) 23 P.D. 482, 484.

124 Quartz Hill Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 689, per Bowen L.J.; vide Salmond and Heuston, The Law of Torts § 154(4), p. 390. It is not clear how this saying is compatible with the existence of the above-mentioned tort of abuse of process (§ 18).

125 Even though the execution process may only be stayed in accordance with the provisions of the law or by order of a court (Execution Law, 1967, sec. 17(a)), the Chief Execution Officer may determine the order in which the various processes sought by the claimant are to be implemented, and he may decline to implement a process or to replace it by some other, less drastic process (sec. 8). Similarly, he is authorized to order that the judgment debt be paid at a certain date or by instalments (sec. 69). Nevertheless, notwithstanding the facilities granted by the Chief Execution Officer, a creditor is at liberty to institute bankruptcy proceedings, and the contention that this might constitute abuse of legal process has been rejected (Josef Zarfati v. Olef Strassman (1969) (II) 23 P.D. 8.

126 In Daniel v. Fielding (1846) 16 M. & W. 200, 207, it was ruled that an action in torts lies for a plaintiff who had been arrested under a court order that had been obtained by false complaint, or on misleading information. Such an action is similar to malicious prosecution. See also Churchill v. Siggers (1854) E. & B. 937.

127 Churchill v. Siggers, ibid.

128 Prosser, § 120, pp. 850 ff.

129 Prosser, loc. cit.; cf. supra n. 99.

130 Prosser, loc. cit.; Winfield, and Jolowicz, , On Tort (11th ed., 1979) 521.Google Scholar It would still be necessary to examine whether there is no substantial gap between the costs awarded to the successful party and his actual disbursements. On this point, the law approaches reality in England, and also in Israel where the courts make some effort to award full costs (Municipality of Holon v. Eliahu Ziv (1959) 13 P.D. 365); as a rule the minimum rates of fees fixed by the Chamber of Advocates are taken as a guideline (Assessing Officer, Haifa v. Nova Berger Ltd. (1968) (II) 22 P.D. 485). The situation is totally different in the United States and in France, where legal costs do not include lawyer's fees.

131 Prosser, loc. cit.

132 Cf. supra n. 100 and § 39 (end) and § 40 (beginning) below.

133 Winfield, 521. Accordingly, the tort was adopted as a cause of action in the Restatement, §§ 674 ff.

134 In the opinion of Prosser (p. 841), the element of unreasonableness required in the tort of malicious prosecution is very similar to that in the tort of negligence. Fleming does point out the difference between them, but recognizes the wide extent of common ground (p. 604).

135 Thus the court may—

(a) Obligate the accused to pay compensation to a person who sustained damages through the offence (Penal Law, 1977, secs. 77–78);

(b) Order how to dispose of an article seized by the police for the purpose of investigation (Criminal Procedure (Arrest and Searches) Ordinance (New Version), 1969, sec. 36); order the forfeiture of it (sec. 39) or its delivery to a person who claims to have a right to it (sec. 40);

(c) Order the forfeiture of any implements or instruments or other things which have been used for the conduct of a prohibited game (sec. 234 of the Penal Law, 1977);

(d) Order the confiscation of a forged or counterfeit banknote and of any implement for making paper or an imitation of paper used for banknotes (secs. 468 and 469 of the Law and cf. sec. 483 for counterfeit coins);

(e) Order that a child be committed to the custody of a relative or of some other fit person or institution (sec. 503);

(f) Prohibit the distribution of copies of the publication containing defamatory matter (Defamation (Prohibition) Law, 1965, sec. 9(a)) or order publication of the court judgment (ibid., sec. 9 (b));

(g) Order the demolition of a building erected without a permit or in substantial deviation from its terms (Planning and Building Law, 1965, sec. 205ff. (19 L.S.I. 330);

(h) Order the discontinuance of a business running without a licence (Licensing of Businesses Law, 1968, sec. 16 (22 L.S.I. 232);

(i) Order the withdrawal of a license held by the accused, such as a driving license (Traffic Ordinance, sec. 35ff. (1 L.S.I. [N.V.] 222). These are only some of the civil (or administrative) remedies deriving from a conviction (or other decision), which the Court will consider incidentally and summarily, i.e. independently of any separate proceedings. We still deplore the abrogation of secs. 55 and 56 of the former Criminal Procedure (Trial by Information) Ordinance, under which a criminal court, having found that a certain witness had “committed perjury in a trial before it, may… commit such person for trial by a court having jurisdiction to try the said offence” or in the case of false evidence “commit such witness to be tried summarily”. Far from abolishing this power, it would have been preferable to extend it and to allow the court, having heard the testimony, to deal directly with the matter of the witness's guilt, without the need for investigation by the police or formal charge on behalf of the Attorney General.

136 This, incidentally, is the accepted practice in France, , Solus, et Perrot, , Droit Judiciaire Privé, t. 1er., § 115, p. 112.Google Scholar

137 Prosser, 849, n. 82.

138 ploni v. Almom & Almonit, (1959) 13 P.D. 903.

139 Ibid., at 914.

140 Ibid., at 906.

141 This tonnent was somewhat assuaged by the prohibition against publishing the names of the parties; but “allowing such claim to be tried at a regular hearing …might have inflicted fragrant injury” (per the then President Olshan, p. 913)—and attention should also be drawn to the interrogatories submitted to the defendants (apparently with the permission of the Registrar?) (ibid., at 913); inasmuch as this was a case of attempted extortion, it cannot be said that a normal order for costs can serve as an effective deterrent.

142 See supra n. 126.

143 See supra n. 127 and Clissold v. Cratchley [1910] 2 K.B. 244 (payment to the principal of the judgment creditor which had not come to the latter's knowledge by the time the judgment was delivered for execution).

144 Execution Law, 1967, secs. 19 and 80(b); Execution Rules, 1968, r. 99(c); see further Ginossar, S., “Plea of Payment in Execution Proceedings” (1973) 8 Is.L.R. 466.Google Scholar

145 The filing of an appeal does not of itself stay execution (r. 427). The same apparently applies a fortiori to any other attack on a judgment. As regards execution of a negotiable instrument see, however, sec. 81A(c) of the Execution (Amendment) Law, 1968 (23 L.S.I 19).

146 Ibid., sec. 18. The Law contains no provision requiring the repayment of court fees and the costs of execution in the event of a judgment being quashed; apparently this was thought to be self-evident. A more delicate situation arises on the quashing of a criminal judgment. Hence, it is usual to put off punishment or release the convicted person on security until verdict has been confirmed in the last instance. In Tik v. Ramat Gan (see supra n. 100) the dispute arose out of the unusual speed with which the demolition order was carried out—demolition seems to have begun even before the order had been made. Had conviction been set aside on appeal it would still have not been possible to restore the situation. The conviction was, however, not set aside and the magistrate refused to indicate whether he would indeed uphold the demolition order. It should be noted that under the Planning and Building Law, 1965 (sec. 206) the making of a demolition order is sometimes mandatory. On the other hand a court holding a retrial, it should also be remembered, has the power to make any order it thinks fit to indemnify a sentenced person who has undergone his penalty or part of it and whose conviction has been quashed (Courts Law, 1957, sec. 9(c); cf. supra n. 121).

147 Sussmann, Civil Procedure, §668.

148 Cf. Lazar v. Bergman (1956) 10 P.D. 354.

149 Cf. rr. 252, 254(a).

150 The sensitivity of the legislature to any damage foreseeable to a defendant is well reflected in limiting the period of detention (six weeks under r. 260 (b)) and of an order ne exeat regno (r. 259(b)) as well as the possibility of replacing the interim relief by the giving of security (see rr. 258 and 259(a)). The same principle will possibly apply also to other forms of interim relief and in providing for the conduct of a proper preliminary enquiry (as regards the appointment of a receiver, see r. 264(b)).

151 Cf. rr. 257, 260 and 261.

152 This particular provision, which has its source in C.P.R. of 1938, preceded the Civil Wrongs Ordinance. It is not consistent with the definition of “damage” in that Ordinance (cf. England in Civil Wrongs, §§ 109ff.) and rather seems to mean damage that is difficult to repair.

153 Cf. also rr. 240 and 254(b).

154 R. 257A. As yet no doubts have been raised as to the legality of this provision. The value of security in general is discussed below in § 41. Perhaps what is intended is that the security be forfeitable, if at all, as in the case of release on bail; cf. supra n. 72.

155 It is to be noted that any form of interim relief is always variable. Sussmann, op. cit., § 479, gives as an example of opposition to interim attachment the case where the defendant preferred to give security for the discharge of his debt, so as to render the attachment superfluous; such variation would also be to the benefit of the plaintiff since it would give him preference over general creditors (cf. supra n. 62 and Kitzis v. Netanya Loan and Saving (1962) 16 P.D. 1113). Similarly, an order ne exeat regno will cease upon the deposit of security by the defendant as prescribed by the order (r. 258).

156 Aviksis v. Peretz (1962) 16 P.D. 1990; Sussmann, op. cit., § 496.

157 We may also note that every person is under duty to appear, be sworn and give truthful evidence if summoned by a party or by the court to do so (Harnon, Contempt of Court, pp. 196–201). According to sec. 2 of the Amendment of Procedure (Examination of Witnesses) Law, 1957, the court need not permit any questioning of a witness which is “irrelevant to the case and unfair and, in particular… which is insulting, intimidating, misleading or humiliating”. This provision, however, has proved both superfluous and ineffective.

158 Execution Law, sec. 28(a); Fine v. Appel (1969) (II) 23 P.D. 615.

159 Sec. 34(a).

160 Secs. 28(c). 40(c), 57 and 60.

161 See sec. 28(b).

162 Execution Rules, 1968, r. 23.

163 Alkalay v. Balanga (1950–2) 3 P.M. 93.

164 The Jewish Agency Executive v. Coconda and Costa (1962) 16 P.D. 2456.

165 At p. 96, § 6.

166 At pp. 96–97, §§ 7–9, the extent of damage was even discussed and the amount of compensation claimed was found to be excessive.

167 Sec. 2 of the Ordinance (sec. 1 of the New Version) mentioned in the judgment at p. 95, § 3. On this aspect see Cheshin in Civil Wrongs, §§ 42ff. (This section is no longer in force).

168 At p. 96, § 5; cf. supra n. 127.

169 At p. 96, § 4.

170 See text at § 27(a); and also Prosser, op. cit., p. 853, “the action… of malicious prosecution… assumes that the defendant has proceeded under proper legal formalities”.

171 At p. 97, § 10.

172 The original report (at p. 2458) is somewhat obscure on this point.

173 Ginossar, S., Law and Justice, pp. 122–24Google Scholar, § 101.

174 At p. 96, § 6.

175 Sussmann, op. cit., § 471 (emphasis added). See also the headnote to the report of the case (“it is doubtful if there is any value (!) to ordinary security”).

176 See sec. 2 of the Guarantee Law, 1967 (21 L.S.I. 41) (“A guarantee can relate only to a valid obligation”). The same is undoubtedly true of a security like a pledge which is “a charge on property as security” (Pledges Law, 1967, sec. 1(a) (21 L.S.I. 44)) and a mortgage, which is “a pledge of immovable property” (Land Law, 1969, sec. 4 (23 L.S.I. 283)).

177 “The guarantor is not liable for more than the debtor's obligation nor more onerously'” (Guarantee Law, sec. 4(a)).

178 Cf. the Jewish Agency case, as above, at p. 2459.

179 Sussmann, op. cit., § 471.

180 Ibid., at § 464. See also Ginossar, S., “What has Changed in Civil Procedure” (1963) 19 HaPraklit 315, 320.Google Scholar

181 The requirement of r. 242 is identical with that of sec. 272 of the Ottoman Law. Both prevent the making of an attachment order before the plaintiff has given “security”. While the Ottoman Law, like the French Law from which it is drawn, refers to a particular kind of security, the personal “surety”, any form of security may now serve the purpose (Sussmann, op. cit., § 471). The Ottoman Law clearly placed upon a plaintiff the obligation to indemnify in prescribing that any damage and loss issuing from the exercise of the attachment shall fall upon the creditor who requested the attachment in the event of it being proved that he was not justified in his action (sec. 282). The Rules do not reproduce this express provision, perhaps for fear that it invaded the area of substantive law. Even if we are ready to attribute great importance to the formula of the security, can it possibly be construed so as to make a plaintiff guarantee that the court shall be acting lawfully? What he pledges is to observe his personal duty to refrain from causing undue injury: the term “unlawfully” simply stands for “without justification”. As for that, it is difficult to say that the Agency in the above case acted in good faith in bringing the action and applying for an order of such gravity after refusing to accept a sum far exceeding the amount of the debt (cf. supra § 40).

182 See § 31 above.

183 Sussmann, op. cit., § 471 (emphasis added). As Cleasy B. put it in Johnson v. Emerson (1871) L.R. 6 Exch. at p. 341, a person will not be heard to say that not he but the judge is to blame if it was he who misled the judge: “It may be that the whole proceeding is knowingly taken in the expectation of a mistake being made to take the chance of it. The mistake of the judge may be the only hope of the vindictive prosecutor”.

184 This was held by Landau, J. (rightly in our opinion) in the Jewish Agency case at p. 2459.Google Scholar

185 See rr. 247ff.

186 At all events the plaintiff may plan his strategy according to external signs (possession, registration and the like) which guide the Execution Office as well. For details of the problem, see Fine v. Appel (1967) (II) 23 P.D. 615 and Ginossar, S., Droit réel, Propriété et Créance (1960) §§ 32–33.Google Scholar How should a plaintiff act when his application for an attachment order is granted, if third party rights first become known to him when attachment is being effected or soon before or after it? He should, it is suggested, apply the test of reasonableness indicated by sec. 35 of the Civil Wrongs Ordinance. Although he is not to be required to accept immediately the claim of the third party and forgo the attachment, he should not completely dismiss the possible damage the third party may incur. He must go into the latter's claim “in good faith”, and seriously examine the evidence tendered, and if he errs in his evaluation of it, he will not be burdened with liability provided his error was reasonable “in the given circumstances”.

187 For instance, as a condition for granting the relief ex parte (r. 304). Cf. supra nn. 36 and 37 and § 36.

188 See r. 253A and cf. r. 274A. The security bond, however, is not to be returned to the plaintiff without first hearing the defendant (cf. Kitzis v. Netanya Loan and Savings (1962) 16 P.D. 1113; what point is there in this decision, if the bond has no value?).

189 Execution Law, 1967, sec. 83.

190 See also r. 268: for some reason the liability of a receiver is limited to loss occasioned “by wilful default or gross negligence” (r. 267(4)). The discrepancy between sec. 14 of the Execution Law and rr. 254–259A, regarding orders ne exeat regno, should also be noted, especially as the latter also apply to a judgment debtor after judgment has been given.

191 Although forfeiture is “blind” (the amount is fixed in advance) and automatic (“the court … shall make the grant … shall … order forfeiture … of the security … forfeiture of the security is not conditional upon real damage being caused”), room remains for the exercise of discretion (“all or part of the security … if persuaded that the application for inhibiting departure was not reasonable”, and see also sub-rule (c)).

192 See § 41 above.

193 Execution Law, secs. 28(c), 40(c), 57 and 60.

194 Sec. 79(b).

195 Agency Law, 1965, sec. 2 (19 L.S.L 231); r. 433.

196 Rules of the Chamber of Advocates (Professional Ethics), 1966, r. 2.

197 Defamation (Prohibition) Law, 1965, sec. 13(5). On the immunity of a barrister from liability for negligence in English law, see Millner, M.A., Negligence in Modern Law (1967), pp. 54–56.Google ScholarCf. Korat, R., “Is Counsel Immune from an Action for Negligence?” (1970) 26 HaPraklit 240–53.Google Scholar

198 Apart from the cases where a lawyer acts as agent for the purpose of serving court documents under r. 436(2), (see A. v. Law Council (1960) 14 P.D. 610) or as administrator of property under court appointment (Official Notices, 1955, p. 109). Cf. Ginossar, S., “The Lawyer's Divided Loyalties” (1981) 16 Is.L.R. 1.Google Scholar

199 See the Professional Ethics Rules, r. 24(a).

200 Wilmovski v. Assessing Officer (1964) (IV) 18 P.D. 729.

201 Ibid., at p. 743, per Agranat J.: “in this appeal the existence of these powers was not even questioned”. Yet their exercise is unusual and supposes some special ground (Hoffman v. Telva Model (1970) (I) 24 P.D. 14).

202 with the utmost respect, Agranat J.'s view seems preferable, for there would be no justification to charge the lawyer with costs if he were not in breach of any “law… imposing an obligation or prohibition… in connection with his profession” and had not thereby committed a disciplinary offence (Chamber of Advocates Law, 1961, sec. 61(1)); but it has often been urged that punishment is not the business of civil law (Millner, op. cit., at 231).

203 in England it has also been held that a client is responsible for the torts committed by counsel in his dealing with the client's affairs: see Clissold v. Cratchley [1910] 2 K.B. 244. The authors of Civil Wrongs are of the opinion that the English rule does not obtain in Israel (Barak at § 266) but they seem to have overlooked the agency relationship between client and lawyer (cf. ibid., § 271, pp. 460 and 462). Nor was the effect of this relationship considered by Tedeschi in his stringent criticism of the principle of third-party liability under sec. 12 of the Ordinance: Tedeschi, G.. “Authorization of Torts” (1969) 4 Is.L.R. 1.Google Scholar

204 An instruction in general terms is insufficient, it must specify to the commission of the wrong as distinguished from permissible behaviour (Barak in Civiil Wrongs § 261). In this regard attention should be paid to the difference between the terms of the Ordinance and those of the judgment which is satisfied with an instruction even implied or with mere knowledge which does not necessarily involve a full appreciation and awareness of the element of vexation. But, however wide the terms of the authorisation, it would not in itself mitigate the liability of either the client or of the attorney. (Cf. r. 31 of the Rules of Professional Ethics).

205 Reis v. Kadmon and Dan (1969) (I) 23 P.D. 639. The background of the matter is described in the text at n. 97. Cohn J.'s opinion contained the following passage (at pp. 642–43): “The question before us is not whether the lawyer acted properly but, on the assumption that he did act improperly, whether the learned judge exercised his discretion reasonably and judicially when he ordered the appellant to bear the costs and to deposit a sum of money into court, simply because of the wrong committed by her counsel or his bad manners. In my view the answer must be … entirely in the negative.”

“As we recently decided in [C.A. 357/65 Wilmovski] at pp. 738–39, the court has power to make a lawyer who has unduly wasted the court's time with pointless argument and senseless opposition personally liable for the costs as fixed by the court. Had the court in this instance, by virtue of its power, imposed these costs upon the lawyer personally, after giving him a suitable opportunity to be heard in his defence, I would confirm his decision to the full. But wherein has the appellant erred? Her only blame was that when injured in a road accident she went to a lawyer whom she legitimately briefed and authorised to represent her in court—and in good faith she left the conduct of the case to him. Why should she suffer for his wrongdoings even though they were committed during that trial? It was not she who directed him to oppose, or to oppose as he did—at least there was nothing before the learned judge, and there in nothing before us, to warrant such an assumption. On the contrary, counsel for the respondents told us that appellant's counsel wrote to him saying that she was ready and willing to be examined by a doctor for the respondents, indicative of the fact that the subsequent opposition came not from her but solely from her counsel.”

206 A. v. The Attorney-General (1958) 12 P.D. 913; Juma'ah Janis v. The Attorney-General (1967) (I) 21 P.D. 106.

207 Reis v. Kadmon, (n. 205 above).

208 Trachtenberg v. Honigman (1960) 14 P.D. 1973.

209 Kadri v. Iraeli Police (1953) 7 P.D. 560.

210 Begleiter v. Ben-David (1966) (IV) 20 P.D. 890; Zangi v. Engelstein (1968) (II) 22 P.D. 24, 26

211 Assessing Officer, Jerusalem v. Yellin (1966) (II) 20 P.D. 298. Cf. Levi v. Rahamim (1969) (II) 23 P.D. 334, 336, where costs were denied because a lawyer had omitted to put in information that might have saved the court, as well as the parties, including his own client, a great deal of trouble. This was deemed tantamount to contempt. (See Harnon, E., Contempt of Court, pp. 6–12Google Scholar).

212 Trachtenberg v. Honigman, ubi supra (n. 208) at p. 1974. Cf. Bramwell B. in Johnson v. Emerson (1871) 6 L.R. Exch. 329, 368: “The attorney, party to this, would be liable as his client. His duty to his client would no more excuse than would the duty of an assassin to the man who hired him.”

213 On the non-liability of a person induced to make a false representation without knowing of the falsehood, see Barak in Civil Wrongs, § 261; per Bramwell B. in Johnson v. Emerson at 368.

214 As occurred in the Wilmovski case (per Witkon J. at 740).

215 Hence, amongst other things, the duty of the lawyer to indicate his name when drafting a complaint (rule 9(a) of the Rules of Professional Ethics, cf. supra n. 109). According to French law (that has in the meantime been repealed: décret du 14 dec. 1810, art. 37) the immunity of the lawyer from defamation was conditional upon the needs of his client's defence and receiving express instaictions from him in writing.

216 Another possibility is express authorisation or ratification given in court by the client.

217 At p. 739. This, it may be observed, was the reason moving the Supreme Court to accept the lawyer's appeal and set aside his personal liability for the costs. Nevertheless Cohn J. thought it right, at the end of his judgment, to express his dissatisfaction with “the wording of the letter the lawyer wrote to the respondent” and his view that “it did not conform with professional dignity”. This observation, balanced by the reprimand administered by the disciplinary tribunal, was also made without prior notice to the lawyer and without giving him the opportunity to justify himself.

218 See Myers v. Elman [1939] 4 All E.R. 484, 508; and cf. the following dictum of Landau J. in Szczupak v. Tel Aviv Municipal Council (1953) 7 P.D. 603, 606: “summary proceedings which are not conducted in a formal manner but in a way that seems appropriate and just in the circumstances.”

219 Not infrequently is a lawyer known to a judge, for good or otherwise, from his appearances on earlier occasions. May this personal knowledge, as well, be taken into account? For example, in the given case the judge in the lower court expressed his sorrow about what counsel had done, adding “especially as this is not the first time counsel has misled the Assessing Officer on behalf of his client”. Cohn J. comments on this observation and recalls the common rule that limits a judge to those matters that arise on trial. The rigidity of this approach is questionable. Being an officer of court a lawyer spends considerable time in and about court and a judge may well watch him at close quarters and obtain impressions of his character. Such knowledge and appreciation may then guide the judge for the purpose of appointing an officer of the court in the full sense, as administrator of an estate, a guardian, a trustee in bankruptcy, a receiver and the like. The same matters will also be considered when a lawyer is a candidate for a judgeship. Can such impressions be entirely ignored? They may equally turn out in the lawyer's favour.

220 cf. § 20 above.

221 (1964) 18 P.D. 729, 739.

222 The right of an interested party to be heard is largely recognised, in respect of the operation of summary powers against him, by express statutory provision (such as sec. 6(2) of the Contempt of Court Ordinance (contempt for disobedience) and sec. 81(a) of the Penal Law, 1977 (imposing costs on a complainant). See also sec. 48(a) of the Criminal Procedure Law, supra n. 21 (regarding forfeiture of security given for the release of a detainee; but see sec. 14 of the Criminal Procedure (Arrest and Searches) Ordinance (New Version), 1969). The right may be implied as in connection with orders made by the Chief Execution Officer against a trustee, a third party or a receiver to forfeit security under secs. 25, 48, 58 and 83 of the Execution Law, 1967, when the hearing takes place as if by way of motion, i.e. after notice has been given to the interested parties or at least with leave to the injured party to apply for setting aside the order. The right is not mentioned in respect of non compliance by a witness to a summons to appear, but if sanctions are applied he is entitled to be heard on a new hearing which will take place when the witness does appear in court. (See secs. 113 and 114 of the Criminal Procedure Law, supra n. 21; rr. 203 and 203 of the Civil Procedure Rules). No provision exists regarding forfeiture of security under r. 257A, the liability of a receiver under r. 268 or of the administrator of a deceased's estate under r. 40 of the Succession Procedure Rules, 1965, or the liability to pay additional fees under r. 12 of the Court (Fees) Rules, 1968. There is no sanctity in the right given to an interested person to be heard, and his behaviour—for instance his absence without satisfactory cause—may be construed as a waiver of the right. It has been held that a complainant who did not appear at the trial can no longer argue that he has not been given a reasonable opportunity to be heard on costs, after trial was held and concluded in his absence (David v. Wisblat (1965) (TV) 19 P.D. 93. The complainant, a lawyer in Eilat, having brought the action in the Magistrate's Court of Eilat against a resident of faraway Kfar Saba, failed to appear on the day fixed for trial).

223 At p. 739.

224 Abraham v. Garfinkel (1963) 17 P.D. 668.

225 Keren Kayemet Le Israel v. Hasnah (1944) A.L.R. 494.

226 Generally a “stranger” affected by the exercise of summary powers has a right of appeal or, if that is not available, an opportunity to be heard (again) at the stage of “rehearing” by the same court or by a higher court. Until the law was amended in 1963 such remedy has been only missed with regard to the liability of a complainant for the costs of his defence; but even then the High Court of Justice had dealt with complainants as if they had lodged appeal before it: see Salojras v. Jerusalem Magistrate's Court (1962) 16 P.D. 2804; Cohen v. Tel Aviv Execution Officer (1957) 11 P.D. 1084.

227 It is desirable to prescribe a uniform rule, speedy and effective, for summary powers exercised on the parties themselves (modes of compulsion, payment of costs, utilization of court procedures), on witnesses (non-appearance, refusal to be sworn and testify, evasion), on lawyers and other court officers (receivers, managers of estates, liquidators, trustees in bankruptcy) and so on.