Effective immunity should also prevent the employee from the hassle of conducting the proceeding, and not only the fear of imposing liability at the end. A similar approach is taken by American law, which recognizes broad immunity for public servants in order to protect them not only from imposing personal liability but also from conducting the proceeding. The US Supreme Court noted this in one of the cases, saying:
The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.
)Mitchell v. Forsyth, 472 U.S. 511 (1985)).
In 1982, the U.S. Supreme Court even struck down the rule that acting with malicious intent (malicious intention) constitutes an exception to immunity, in that it states that an examination of the subjective mental element of a public servant requires a complex factual inquiry that is expected to interfere with the proper work of the public servant (Harlow v. Fitzgerald, 457 U.S. 800 (1982)) (hereinafter: Harlow). Instead, the U.S. ruled that the exception to immunity would apply only in cases where the action of a public servant violates a clear constitutional right (clearly established right) of the plaintiff, of which a reasonable person should have been aware. The choice of an objective standard for examining the question of immunity is intended to minimize as much as possible the evidentiary clarification required on this question, although in later decisions it was clarified that even for the purpose of applying the said test, some factual clarification may be inevitable (Anderson v. Creighton, 483 U.S. 635, at 641 (1987); See also: Harlow at 821 (Brennan J., concurring); Pearson v. Callahan, 555 U.S. 223 (2009); Alan K. Chen, The Facts About Qualified Immunity, 55 Emory L. J. 229 (2006)).
Do the considerations enumerated above justify the conclusion that there is no room for factual clarification by way of presenting evidence, even at the beginning of the discussion of questions relating to the granting of immunity? This is the question at the heart of the appeals before us, and in order to answer it, we must examine separately the procedures set out in the Ordinance and the Regulations regarding the immunity of civil servants (which relate to Flexer's appeal - Civil Appeal 1649/09) and those set out in the Ordinance and the Regulations regarding the immunity of employees of public authorities (which relate to the Civil Appeal Authority 775/11 filed by Adv. Gordon).