(See also Civil Appeal Authority 5188/16 IDB. Development v. Yael Kabiri et al. (published in Nevo, October 13, 2016)).
- Clement writes, inter alia, that the rejection of a motion to certify a class action entails an award of costs, yet the courts refrain from awarding the defendant his full expenses both for the fees he was forced to pay to his attorneys and for expenses and costs that cannot be easily assessed and are obviously not legal expenses that the court is entitled to award. According to him, ruling on high expenses will lead to increased deterrence against filing frivolous claims, but there is concern about the result of excessive deterrence of plaintiffs from representing the group, especially since their profits from representing the group are limited.
(ibid., pp. 373-375).
- In summary, it should be said against the background of the above, that the case law regarding the award of costs in a class action proceeding, determined that, as a rule, a cautious and moderate approach should be taken with regard to the extent to which the plaintiffs in class action proceedings should be charged with legal expenses, in order to preserve and promote the use of the class action mechanism and to avoid creating deterrence against potential plaintiffs when they come to protect public interests (see the IRM Technologies case, supra and the additional discussion in this judgment in the Pelephone case, supra; Class Action (Jerusalem) 21761-05-14 Cohen v. Egged - Cooperative Association for Transportation in Israel in a Tax Appeal (published in Nevo, September 2, 2015)). On the other hand, the Supreme Court qualified this rule by stating that the principled position that an award of costs in class actions will be granted sparingly does not apply in cases where frivolous motions are filed in bad faith. In this context, the rule also states that when a plaintiff comes to file a class action, he is required to conduct a thorough and in-depth examination of the factual and legal basis necessary for the matter: see LCA 4303/12 Insler v. Emek Hefer Regional Council (published in Nevo, November 22, 2012), para. 19; Civil Appeal Authority 2444/08 Shufersal in Tax Appeal v. Cohen (published in Nevo, December 21, 2008), para. 9(a)).
- After considering the arguments of the parties, taking into account the legal framework stated above and in view of all that is stated in this judgment, I have not found that the respondents should be completely deprived of their right to award costs after the motion for approval was denied.
- Throughout the years of his administration, considerable resources were invested in this proceeding, and this was also reflected in the various pleadings that were submitted, the affidavits of the testimony and the opinions, and in the length and complexity of the written summaries.
- While balancing the various relevant interests, taking into account that the Respondents' fee agreement with their counsel was not presented to me, taking into account the amount of the claim, and bearing in mind even what is stated in paragraphs 81-83 above, I found that the Applicants, jointly and severally, should be obligated to pay all the Respondents [through Respondent No. 1], a total sum of NIS 1 million.
- Expenses will be paid by day 7.26 From that date onwards, the sum will bear linkage differentials and interest in accordance with the law.
On the verge of completion
- In the Atzmon case above, it was held, inter alia, that:
According to the usual "rules of the game" in tort law, a plaintiff-injured party seeking compensation from a wrongdoer defendant must prove that the defendant caused his damages, in a tortious act, at the level of proof of the balance of probabilities. An injured person who fails to prove that the defendant standing before him caused his damage (the burden of proof) with a probability of more than 50% (the level of proof), will not win his claim. The rules of the burden of proof and the level of proof reflect two basic insights in civil law: "He who brings out from his friend the proof must bear it" (Bava Kama 46a); and prefers an all-or-nothing binary decision over a probabilistic decision (Guy Shani Presumptions of Negligence 35-36 (2011) (hereinafter: Shani, Presumptions of Negligence); Ariel Porat and Alex Stein, Tort Liability Under Uncertainty, 15-56 (2001) (hereinafter: Porat and Stein)). However, there are situations in which the rules regarding the burden of proof and the level of proof are perceived as inappropriate or unjust, and the legislation and case law have recognized situations in which the burden of proof must be transferred to the defendant (ibid., paragraph 39).