The Honorable Justice Sohlberg sought to warn against an overly strict approach, and noted the following:
"... In order to file a derivative claim, it is not sufficient to rely on 'fragments of information' regarding the existence of a cause of action for the company, in accordance with section 198 of the Law... At the same time, even in this context, it is worth remembering the plaintiff's informative inferiority that is found in many cases, which is the main obstacle that burdens the shareholders in filing a lawsuit against the company's decision makers. A breached vision is that in the absence of real information about the company's decision-making processes, the plaintiff finds it difficult to construct the full story of the infringement, and to point to the alleged existence of all the elements of the cause of action.... Therefore, it has already been ruled that the plaintiff's inability to include in the statement of claim all the details essential to the existence of the cause of action will not constitute a barrier to the filing of the derivative claim."
And with regard to the required evidentiary standard, it was noted that:
"Care must be taken not to lean on the overly stringent side. the existence of the facts whose purpose is to prove the foundations of the cause of action... The court must examine it already at the preliminary stage, but the required threshold is still prima facie, as section 198 of the law puts it. In this regard, I am of the opinion that it is appropriate to rely on common sense, and to look at the evidence as a whole, taking into account, inter alia, the circumstances of the claim, the status of the plaintiff and the disparities of power and information between him and the officers of the company."
[We will note in a parenthetical article that this should be read in the case of Africa Israel against the background of the circumstances of the case in which a claim of breach of trust was discussed, in which fraudulent claims were even made].