Civil Appeal Authority 1954/24 Netanel Vaknin v. Kibbutz Nir David – Cooperative Society - part 4

(-) A lawsuit filed for statements made in the context of an argument and discourse on a subject that may arouse public interest - In most cases, silencing lawsuits are aimed at harming the company's achievement and discourse, regarding issues that may arouse public interest, and to exclude statements that are not to the plaintiff's liking.  This is due to harm to interests, or damages that the plaintiff believes that a certain public activity causes him, even though these are damages that are not compensable (for example, because they are based on true claims).

(-) The Plaintiff's Conduct - In addition to all the characteristics that have just been presented, there is also room for a general look at the plaintiff's conduct, while paying attention to whether it raises indications of 'silencing' activity.  Possible examples of this are letters and warnings that appear to be aimed specifically at silencing the defendant, as opposed to an attempt to obtain compensation for the damages he caused, as well as other procedural moves that concern the burden on the defendant and abuse him (for examples of such moves, see, for example: Civil Appeal Authority 2816/17 Dahari v.  Levy, paragraphs 6 and 1 [Nevo] (May 10, 2017), where the plaintiff was discussed, inter alia, a plaintiff who chose to conduct several proceedings against the defendant, without justification; Judgment in the case Civilian (Jerusalem District) 8069/06 The Automation Company in the Local Government Administration in the Appeal Taxes N.  Gur, paragraph 35 [Nevo] (July 13, 2009) (hereinafter: The company's interest in automation), where it was said that the plaintiff did not spare a variety of procedural means in order to intimidate the defendant and make it difficult to conduct the proceeding - she filed the claim in a court far from the defendant's place of residence, concealed important documents and other such moves).

Israel's Version Response to Estoppel Lawsuits - Abuse of Legal Proceedings

22. In light of the aforementioned rule, after the phenomenon of silencing lawsuits was conceptualized, brought to the forefront, and its damages and ills were studied, various countries have created legal tools to deal with the problem - anti-SLAPP arrangements. In most cases, these arrangements were created through legislation, but in some countries their roots were rooted in case law (for a comprehensive review, see: Aridor Hershkovitz and Schwartz Altshuler, pp.  96-145; Nati Perlman, Silencing Suits: A Comparative Review 7-19 (The Knesset, Research and Information Center, 2020)).  In Israel, no similar legislative step has been taken, despite a number of initial attempts to take steps in this direction (for details of the attempts, see, for example, pp.  1 and 5, which also describe an attempt to establish a "National Fund for the Protection of the Public Right to Know," which will assist in the defense of defendants in silencing suits; see also: Tal, pp.  561-562).  Does this mean that when an Israeli judge sits in court and understands that he has a silencing suit before him, he is unable to save? My answer to this is no.
23. As I have noted in the past, even during the period when the Civil Procedure Regulations, 5744-1984 (hereinafter: the old Regulations), "the Prohibition of Defamation Law does not impose heavy burdens of proof on a plaintiff as a prerequisite for filing his lawsuit, in order to prevent SLAPP suits"; But not the widower of Israel - even "in the common law there are the balances required to deal with frivolous lawsuits. In the absence of a cause of action, or where the claim is nuisance and intrusive, a claim can be dismissed out of hand.  [...] Even during the course of the hearing, the court must be aware of this, and thwart moves whose only heavy purpose is to thwart moves" (Civil Case (Jerusalem District) 2376-08 Conference on Material Claims of Jews v.  Germany v.  Meroz, para.  4 [Nevo] (June 30, 2010); For support of this approach, also under the regime of the old regulations, see: Tal, pp.  565-566).  These things, which were beautiful in the world of the old regulations, became even more beautiful in the world of the regulations of the dayna; "The kids that you have placed have become goats with horns" (Bavli, Berachot 36a).  This is because the subordinate legislator enshrined in the new regulations, in clear language, a powerful "antidote", which is aimed at procedural proceedings of the kind to which the estoppel suits belong - the prohibition on misuse of legal proceedings (for the possibility of using this tool against estoppel suits, even in the world of the old regulations, by virtue of the court's inherent authority, see: Tal, p.  547).  I will expand a little on it.
24. Already in the "entrance gate" to the Civil Procedure Regulations, under the heading "Basic Principles", Regulation 4 appears, which states that "a party or his counsel shall not abuse court proceedings, including an action in a proceeding whose purpose or result is to disrupt, delay or harass a litigant, including an action disproportionate to the nature, cost or complexity of the hearing" (I note that the Regulation is located shortly after the provision regarding the duty of litigants and their counsel "to act in good faith and procedural fairness" (Regulation 3) to the regulations), in the sense of "do good" and "turn away from evil"; Regarding the distinction between bad faith and abuse of legal proceedings, see: Rosen-Zvi, p.  46; Civil Appeal Authority 8921/20 SKS Holding LLC   Oren, paragraphs 27-30 [Nevo] (May 13, 2021) (hereinafter: the SKS case); For a vote on the frequency of abuse of legal proceedings in the period prior to the new regulations, see: Moshe Bar Niv (Boronovsky) and Ran Lachman, "Abuse of Legal Proceedings in Israel," Hapraklit 55 376 (5776) (hereinafter: Bar Niv and Lachman)).  Immediately afterwards, in Regulation 5, the promulgator of the Regulations further clarified that "the prevention of abuse of the judicial process" is part of the "public interest" that those sitting in the trial should have before their eyes.  The purpose of this prohibition on abuse of legal proceedings is twofold: "on the public level - to maintain the integrity and purity of the judicial process, and on the private level - to prevent unfair results between the litigants litigating before the courts" (Civil Appeals Authority 7770/21 Mar'i v.  Beria, para.  17 [Nevo] (February 8, 2022); Miscellaneous Applications Civil 6479/06 Israel Discount Bank in Tax Appeal v.  Schnapp, para.  8 [Nevo] (January 15, 2007) (hereinafter: the Discount Bank case); Orna Rabinovich-Eini and Doron Dorfman, "Abuse and Lack of Good Faith in the Civil Procedure: The Gap Between a Post-Adversarial Discussion Model and a Traditional Representation Model" by Shlomo Levin 255, 271 (Asher GruILS, Eliezer Rivlin & Mikhail Karaini eds.  2013) (hereinafter: Rabinovich-Eini & Dorfman)).
25. And what are the procedural proceedings that amount to abuse of legal proceedings? In the literature, a position has been expressed, according to which these are "actions whose purpose is to make use of the legal process for the purpose of achieving improper goals that are foreign to the proceeding" (Rosen-Zvi, p. 46); I, too, have adopted this definition, as someone who "captures" one of the faces of the prohibition on abuse of legal proceedings: "There are cases of extreme severity, in which the very existence of the entire legal process - or of a particular application filed within the framework of - are not intended to achieve the legitimate purpose declared by the litigant, and serve only as a 'sword', intended to promote other interests of that party or related parties.  Such cases were treated with extreme severity, because they undermine the basic purpose of the judicial process.  It is precisely this procedure, which serves as an instrument for the administration of justice, that becomes a tool in the hands of vested interests, through which justice is prevented from coming: 'And they shall be brought to justice - and behold, a slave, to charity - and behold, a cry' (Yeshayahu 5:7)" (SKS, para.  29; for additional examples from the case law, see the references cited by Rosen-Zvi, pp.  290-291; see also Rabinowitz-Eini and Dorfman, pp.  260, 267-268, which identify a close approach with the rulings of the 1970s, which preceded the penetration of the principle of good faith into the world of civil procedure).
26. Even if, as stated, we are not dealing with a test that exhausts all the possibilities for abuse of a legal proceeding (see: Regulation 4 of the Regulations; SKS, paragraph 30), it seems to me that it fits as a 'gauntlet' to the issue at hand - silencing suits. Thus, this is the "essence blood" of the difficulty that these improper claims raise: "When [the characteristics of the estoppel suits] are met, it is clear that the purpose underlying the claim is not to receive the relief sought therein, but rather to deter and impose a chilling effect on the willingness of the defendant, and other people of his kind, to participate in a public hearing and express their opinions, due to the concern that the material and mental resources required of them will prevent many from expressing their opinion regarding the plaintiff and his actions, as well as with other powerful elements like him" (Rosen-Zvi, p.  292 (emphasis added - v.  ); See also: ibid., p.  290; Tal, pp.  521-522, 557).
27. Thus, estoppel lawsuits are a clear case of abuse of a legal proceeding, since their purpose is to achieve foreign and external purposes of this proceeding (Rosen-Zvi, pp. 288-289, 293; Tal, p.  565; Ganaim, Kremnitzer and Schnur, p.  458).  At this point, I believe, lies the 'key' to the appropriate judicial response to them.  This is in view of the two 'price tags' that the subordinate legislator attached to the prohibition on abuse of legal proceedings: deletion of a statement of claims (Regulation 42 of the Regulations), or charging for appropriate legal expenses (Regulation 151(c) of the Regulations) (for additional options mentioned in the case law, see: Discount Bank case, paragraph 8; Civil Appeal Authority 3025/21 Engel v.  Discovery School Ltd., para.  16 [Nevo] (July 18, 2021) (hereinafter: the Engel case); Civil Appeal 8553/19 Alexander Oren in Tax Appeal v.  Cohen, paragraphs 28-35 of the judgment of my colleague, Justice   Stein [Nevo] (November 17, 2020)).  I will relate to these two judicial responses, which are mentioned in the Regulations, and their possible suitability to cases of silencing claiMs.

Option 1: Dismissal of silencing claims in limine

28. One possible response that was determined by the promulgator of the Regulations, with respect to a party who abuses court proceedings, lies in the chapter "Disposal of Pleadings": "The court is of the opinion that a party who has abused court proceedings is entitled, for this reason alone, to delete all or part of his statement of claims" (Regulation 42 of the Regulations). First, for the avoidance of doubt, I will note that in order to dismiss a claim in limine, due to abuse of legal proceedings, it is not necessary that it be a claim without cause, or one that has no chance of being accepted.  The reason for this is simple: the dismissal in limine of a claim that lacks a cause was already regulated in Regulation 41(a)(1) of the Regulations.  If we say that this characteristic is also a condition for the dismissal of a claim in limine due to misuse of legal proceedings - what did the Sages do in their regulation, i.e., in Regulation 42 of the Regulations? It does not stand to reason to say that the novelty is only in expanding the possibility of dismissal to additional pleadings as well, which are not a statement of claim; The rabbis believe that in Regulation 42 it is precisely in cases where a plea writer - including a statement of claim - 'holds' a certain legal ground.  However, there is still room to remove it on a site, due to the misuse of the contaminated site.
29. Having said this, I can get to the bottom of the matter: Is dismissal of a lawsuit in limine an appropriate judicial response to estoppel claims? Since, as stated, the 'anchor' for handling 'Made in Israel' estoppel claims is found in the general law that applies to abuse of legal proceedings, I will use the paths paved by the case law with regard to the prohibition of abuse, and its consequences, including the possibility of dismissal in limine of a statement of claims, in order to answer the question.
30. Admittedly, as noted, the introduction of the prohibition on the misuse of legal proceedings at the gates of the Civil Procedure Regulations is one of the innovations of the new regulations; however, the prohibition was strong and existed even before that, when the ability to provide an appropriate response to its violations was based on the inherent authority of the court (see, for example, the Discount Bank case, paragraphs 5-8). Within the scope of this authority, the possibility of dismissing a lawsuit in limine due to abuse of legal proceedings was also included (Civil Appeal 8/74 Leiserowitz v.  Leiserowitz, IsrSC 28(2) 436, 439 (1974); Civil Appeal 2452/01 Oren v.  Migdal Insurance Company Ltd., IsrSC 58(1) 577, 583 (2004) (hereinafter: the Oren case)); as well as a variety of other possible responses (for details, see: Discount Bank case, paragraph 7 and the references therein).  As part of this, the case law held that in order to formulate an appropriate response to any use and abuse of the legal proceedings, a balance must be struck between the purposes of the prohibition on abuse - i.e., maintaining the integrity of the legal process and preventing unfair results in the relations between the parties - and conflicting rights and interests, foremost of which is the right of a party to approach the courts and to have his day before the court (ibid., para.  8; Rabinowitz-Eini and Dorfman, p.  271).
31. For the purposes of this balance, the court is required to consider "all the circumstances of the matter before it, including: the nature of the conduct in question of the litigant - whether it amounted to sophistication, subterfuge, arbitrariness, contempt for the court or the failure of the other party and the proceeding as a whole; The state of mind of the party - whether the misuse of the judicial process was done inadvertently, out of mistake or negligence, or perhaps intentionally; the extent and intensity of the violation of the relevant rules of procedure and the proper conduct of the judicial process; as well as the proportionality of the relief sought in view of the possible infringement of the rights of the party" (Discount Bank case, paragraph 8; Civil Appeal Authority 4625/22 Answered v. Katz, paragraph 44 [Nevo] (January 10, 2023) (hereinafter: the Answered Matter)).  In my opinion, an examination of these aspects of the set of circumstances that characterizes a typical estoppel suit will teach us incorrectly what may already be intuitively understood - such claims are an extreme and particularly serious case of abuse of legal proceedings.  Thus, this is a tricky move, in which a party tries to realize through the legal process purposes that the latter is not even familiar with, while thwarting the court and the opposing party; Things are done intentionally; The violation of the integrity of the judicial process is severe, since it is exploited in order to unlawfully inflict harm on the opposing litigant, while attempting to deter him, as well as others like him, from exercising their constitutional rights.
32. These characteristics all boil down to the last of the aforementioned aspects - the issue of the proportionality of the remedy vis-à-vis the possible infringement of the rights of the litigant who abuses court proceedings. First, the aforementioned rule, regarding the severity of abuse in court proceedings, by way of filing a claim for estoppel, already indicates in itself that in these cases, even a harsh and aggressive judicial response will be proportionate.  In addition, estoppel lawsuits also have specific characteristics, due to which a remedy of summary dismissal, despite its consequences and severity, may well be suitable.  As mentioned above, the adverse harm of silencing lawsuits does not lie in the judicial outcome that is obtained at the end, but rather in the price that the proceeding itself exacts from the defendants, in terms of emotional pressure and the drain of time and financial resources, in the sense of 'the process is the punishment' (as the title of Malcolm M.  Feeley).  Therefore, a judicial response that relates precisely to the problem at hand cannot be satisfied with the rejection of such claims, but must aim at preemptively preventing the proceedings that are being conducted within them.  In this way, it will be possible, at the level of the concrete proceeding, to prevent the specific defendant from bearing the damages of the proceeding; and in wider circles of influence, to take the sting of the 'chilling effect' produced by the silencing lawsuits (which is also based, as you may recall, on the costs of the proceeding).  By its very nature, dismissal out of hand is the "king's way" to cut off the improper procedure, which is still in its infancy, and to realize these desirable purposes.
33. In this context, I will also note that in cases such as this, in contrast to the plaintiff's right of access to the courts, there is a fundamental, important, and no less important, if not more important right - the right to freedom of expression, both of the concrete defendant and of potential defendants, who will be affected by the consequences of the 'chilling effect'. In the absence of an effective ability to protect the right to freedom of expression, from those who rise up against it, the ability to enjoy and realize the right will be significantly impaired (for a general argument in this vein, see: Gideon Parchomovsky & Alex Stein, The Relational Contingency of Rights, 98   L.  Rev.  1313, 1314, 1338-39 (2012) (hereinafter: Parchomovsky & Stein)).  We must also remember that "the defendants also have the right to a fair trial (which constitutes an aspect of the right of access [to the courts])" (Rabinowitz-Eini and Dorfman, pp.  271-272; and see also: Bar Niv and Lachman, pp.  383-384); Refraining from using the means of disposal in limine, in appropriate cases, means depriving this aspect of the right - a matter that we must also be careful about (regarding the need to balance the right of access to the courts, With the rights of the opposing party, see: in Tax Appeal 7367/22 Anonymous v.  Anonymous, paragraph 25 and the references there [Nevo] (January 26, 2023) (hereinafter: the Anonymous case)).  The need to protect the defendant's procedural rights is reinforced, taking into account the power disparities that characterize silencing suits, as well as the plaintiff's motivation in such proceedings to shape his claim in such a way as to intensify as much as possible the harm that the proceeding will cause to the defendant.
34. Still, the claimant may argue that extra caution is required, with regard to the dismissal of claims in limine, in view of their classification as silencing claims; this is due to the different 'cost of error' of each of the options before the court. The 'cost' of rejecting a proper claim, the argument will continue, due to its erroneous classification as an improper estoppel claim, is greater than that of a decision to continue investigating a flawed claim.  Thus, as part of the latter option, the court may still identify the emptiness of the claim and order its dismissal, while charging the plaintiff with the defendant's expenses (regarding the issue of the cost of the error, in a different context, see: Alex Stein and Talia Fischer, "The Law of Evidence," The Economic Approach to the Trial 1113-1114 (Uriel Procaccia, ed., 2012)).  In fact, it seems that a close approach (along with a practical difficulty, which I will address below) is what underlies the great caution taken by case law with regard to the dismissal of claims in limine, due to the lack of a cause of action (Rosen-Zvi, pp.  278-281; to criticize this approach, arguing that it is based on an unjustified preference for the rights of plaintiffs over those of defendants, and that it leads to a waste of resources and the corruption of precious judicial time, See: ibid., p.  281; Eran Taussig, "The Factual Detail Required in Pleadings and the Proper Standard for Dismissing a Claim in Limine in the Absence of Cause" Alei Mishpat 9 111, 138-140 (2011)).  I do not accept this approach in this case; I am of the opinion that with regard to estoppel claims, there is no room to assume prioriori the existence of such a gap, with regard to the cost of the error.  This, as described above, is in view of the prices that the proceeding itself is already charging the defendants, and also taking into account the chilling effect that it is able to produce.  Therefore, even an erroneous decision to continue investigating an improper estoppel claim entails potential costs, which are not negligible at all; It is our duty to guard against it.
35. I will add that the consequences of deleting a statement of claim are not negligible, but they should not be exaggerated: "The significance of deleting a statement of claim is a return to the beginning of the queue by filing a new claim while re-bearing the fee that this entails. The deletion is intended to reflect the necessary balance between a party that violates the right of access to the courts of the opposing party and of the litigants in general, and its right of access to the courts.  [...] The dismissal of the claim does not negate his essential rights" (Explanatory Notes to the Civil Procedure Regulations, 5779-2018, p.  21; Civil Appeal 2602/21 Ben Hamo v.  Leiman Schlissel Ltd., para.  4 [Nevo] (December 20, 2021)).  For this reason, "the use of the tool of deletion of an action is not considered so dramatic that it should be applied only in extreme cases or when 'all the summers have ended'" (ibid.; and see also: Tal, p.  568, with reference to the law that applies under the old regulations).  Indeed, there are cases in which there will be little replication for the re-filing of the claim, since the court will again delete it (see: Rosen-Zvi, pp.  283-284).  However, it seems that these are precisely the cases in which this is the appropriate result - if the plaintiff indeed has a proper cause of action, but it has been used problematically, then he is able to amend and re-submit it, in an appropriate manner; On the other hand, if we are dealing with an irreparable cause of action, then in law he will not be able to re-file it, effectively, and this does not constitute a problematic violation of his right to approach the courts.  I will also note that Regulation 42 instructs that when a party abuses court proceedings, the court may "delete all or part of his pleadings" (emphasis added - v.  ).  This, too, is capable of contributing to the proportionality of the expungement, in appropriate cases (as to the possibility of dismissal in limine, in extreme cases of abuse of legal proceedings, see: Regulation 43 of the Regulations; Rosen-Zvi, p.  276; see also Aridor Hershkovitz and Schwartz Altshuler, p.  159, who present the desired law for their position, speak of the dismissal of claims for estoppel in limine.  I do not rule out the possibility that there will be estoppel suits that will justify this remedy as well, even though it should be applied sparingly, especially in view of the choice of the subordinate legislature to attribute the abuse to the result of deletion (Regulation 42 of the Regulations).  In any case, this is not the place to elaborate on this).
36. Therefore, although it has been held that due to the high level of the right of access to the courts, "as a rule, the court will not refuse to be required to proceed with a proceeding submitted before it on the grounds of abuse of court proceedings, and will prefer the granting of other remedies" (Discount Bank case, para. 8; Oren case, p.  583), I am of the opinion that estoppel suits are among the cases in which there is also justification for dismissing a claim in limine (for a similar approach, expressed after insisting on the general jurisprudence regarding the dismissal of claims in limine due to abuse, see: Rosen-Zvi, p.  292).
37. Needless to say, when a court deems it appropriate to dismiss a suit for silence in limine, it is appropriate to award appropriate legal expenses in favor of the defendant, at a higher rate than usual (Naidli, para. 55).  This is in order to prevent a situation in which estoppel claims will be a risk-free move, so that if the lawsuit succeeds in the proceeding, and reaches the lounge , it will of course be better for the plaintiff; and if the claim is dismissed out of hand, he will lose little, if at all.  (For more information, see: The Respondent Case, paragraph 47).  The importance of awarding costs in such cases can also be learned from the fact that even within the framework of the American legal system, in which it is customary, as a rule, that each party bears its own costs, some of the anti-SLAPP arrangements include a special, asymmetrical expenses provision: "When the motion for summary disposal is granted, the defendant is entitled to court costs, but if the motion is denied, the plaintiff will be entitled to costs only if it is proven that the motion for dismissal is intended to thwart the claim or to delay it and nothing more" (Tal, page 532).
38. "Say to me, 'Gamla in my uniform - Akba danced; People say: A camel in uniform dances in a small area; here is the field, here is a camel, here is too - and it does not dance; Bavli, Yevamot 45:1, and see there for the context of the matter); that is, even after I have found that silencing lawsuits are among the cases in which it would be justified, in principle, to dismiss a statement of claim out of hand, the application of the matter in practice, in practice, is still complex. This is in view of a considerable practical difficulty - it is often difficult to determine, already at the threshold of the proceeding, without even going into the depth of the matter and diving into the depths of the evidence, that we are indeed dealing with a suit for silencing (Ganaim, Kremnitzer and Schnur, p.  458).  In particular, it may be difficult to decide, at this early stage, that the cause of action at issue is 'baseless or borderline'.  Admittedly, there may be lawsuits that have a 'black flag flying over them,' and that can be easily and immediately identified as silencing claims; These claims, as I have noted, would be correct and proper to be dismissed out of hand, while awarding expenses at an appropriate rate.  However, the complex question will arise in the intermediate cases - in these cases, it will often make it difficult for those sitting in the trial to rule the law, without going into the depth of the matter (for hearings regarding dismissal in limine on other grounds, in which the case law also noted the complexity of these hearings, see: Civil Appeal 7547/99 Maccabi Health Services v.  Dubek Ltd., IsrSC 65(1) 144, 175 (2011); Civil Appeal Authority 1120/06 Lauer v.  M.S.  Building and Development Company in Tax Appeal (in liquidation), para.  11 [Nevo] (April 16, 2007) (hereinafter: the Lauer case); Civil Appeal Authority 6552/20 Israel Discount Bank in Tax Appeal v.  A.  Levy Investments and Construction Ltd., para.  20 [Nevo] (December 2, 2020); Rosen-Zvi, pp.  282-283).
39. In addition, care must be taken against the dismissal of claims in limine, due to their classification as estoppel claims, in cases where this raises complexity, also in order to prevent a situation in which many libel suits will include a preliminary, long and detailed stage of a hearing of a motion for summary dismissal, so that the result will be the opposite of what is hoped for - the burden and cumbersome of the proceedings, rather than streamlining and speeding up (according to the claim that this was one of the consequences of some of the anti-SLAPP arrangements adopted in the Sea States, See, for example, Tal, p. 533 and the references therein; see, in general, the Lauer case, para.  11).  In this context, it is not superfluous to mention that we are dealing with an attempt to search for a judicial response to silencing claims, although it seems that it is not for nothing that most of the countries that sought to adopt such a response did so through legislation, in which special procedures were determined, inter alia, that were precisely "tailored" to the needs of dealing with these claims (Tal, p.  531; Aridor Hershkovitz and Schwartz Altshuler, p.  144).  It would seem that this increases the difficulty of trying to identify silencing claims in advance, as well as intensifies the concern that a willingness to clarify these claims, even in complex cases, ends up being cumbersome and delaying litigation.
40. In summary: since estoppel lawsuits constitute an abuse of legal proceedings, a use of great severity, when a claim is identified as such, the judge should not shy away from deleting it outright, in order to prevent its damages and injuries, as well as the chilling effect that may arise as a result of it. However, even though this may provide a certain response to the difficulty raised by the silencing lawsuits, it is only a partial response; It cannot be satisfied.  Therefore, I will turn to the examination of the second judicial response determined by the proposer of the regulations, with respect to a litigant who abuses legal proceedings - ruling on appropriate costs.

Option Two: Imposing Appropriate Legal Costs in Estoppel Suits

41. In addition to the provision that is now being discussed, the subordinate legislature established an additional possible sanction in the event of a party who abuses court proceedings: "If the court is of the opinion that a party has abused court proceedings or has not complied with these Regulations, it may charge him with expenses for the benefit of the injured party or for the benefit of the State Treasury, and in special circumstances even his representative" (Regulation 151(c) of the Regulations; See also Regulation 156 of the Regulations). The possibility of imposing this sanction was also recognized by the courts, even before the new regulations came into effect: "Improper conduct by a party may lead to the denial of his right to costs, where he won his judgment, and in appropriate cases even to charge him with expenses in favor of the party who lost.  In addition, when a party whose misconduct has lost his case, the defects in his conduct may lead to higher expenses than usual.  Another option is the imposition of expenses for the benefit of the State Treasury on a party that conducted itself improperly, whether in addition to or without expenses in favor of the opposing party" (Civil Appeal Authority 6658/09 Mul-T-Lock in Tax Appeal v.  Rav Bariach (08) Industries Ltd., para.  13 [Nevo] (January 12, 2010); Discount Bank case, para.  8).  The possibility of awarding appropriate expenses was also specifically mentioned, as one of the tools for dealing with silencing lawsuits (Civil Appeal 2266/14 Yellin v.  Im Tirtzu Zionism or Cease [Nevo] (July 15, 2015); Sarna case, para.  7; Naidli case, para.  55; in the past I even had the opportunity to use it in such a case - the Automation Company case, paragraphs 34-36).  At the same time, a review of recent case law on the subject revealed that "the cases in which the courts used court expenses for deterrence are very few and there is no binding precedent on the subject" (Aridor Hershkovitz and Schwartz Altshuler, p.  37; for a description of the cases, see ibid., pp.  33-47; for a similar conclusion, see also: Tal, pp.  552-554).
42. I have described above that, in principle, summary dismissal is the ideal response to silencing claims, but its implementation raises difficulties. On the face of it, a solution in the form of awarding appropriate expenses is the mirror image of this: the use of this sanction is carried out after the claim has been properly investigated, so that, on the one hand, "relatively limited difficulties arise from the aspect of preserving the right of access to the courts" (the Engel case, para.  16), and therefore there is less room for concern about its use; but on the other hand, this is also the source of the weakness of the sanction - if we have come to the conclusion of the legal process.  This means that the defendant has long suffered from the damages of the proceeding.  Even from a systemic perspective, valuable judicial time has been devoted to a proceeding that is not worthwhile, at the expense of other proceedings (for more on this problem, and its various aspects, see: Bar Niv and Lachman, pp.  384-385).
43. In order to get out of this 'trap', I am of the opinion that a particularly stringent ruling on expenses will be required; appropriate, in my opinion, is the following format: the rate of expenses that a plaintiff-silencer will be charged will be particularly high, and will have, as a rule, a strong correlation with the amount claimed by him, lest he even reach it (this, based on Regulation 151(c) of the Regulations, mentioned above, when an additional anchor to such a sanction, on the legal level, can also be found in the general jurisdiction of a court hearing a civil matter, which was enshrined in section 75 of the Courts Law [Consolidated Version], 5744-1984). In this way, I am of the opinion, it will incentivize refraining from filing estoppel suits in the first place, or at the very least, bring about their cessation at a relatively early stage of the proceeding, in which the court waived the plaintiff of the financial risk to which he was exposed.  I will explain what this is about.
44. In the matter of SKS , I noted the following:

"It seems that a request of this kind before me - the underlying motive of which is economic - would never have come about, had the Applicants not believed that the damage that might be caused to them and their controlling shareholders - by its rejection, would have been less than the benefit that would accrue to the controlling shareholders - it would have been received.