In case law, a test has developed according to which a relief will be classified as declarative only when a plaintiff shows that he has a legitimate interest in clarifying his claim as a claim for a declaratory order (see: Civil Appeal 227/77 Barclays Discount Bank in Tax Appeal v. Brenner, 32(1) 85, 90 (1977); Civil Appeals Authority 1910/04 Ilonit Tourism Projects in Tax Appeal v. Israel Discount Bank Ltd., para. 7 [published in Nevo] (June 22, 2004)). It should be emphasized that the plaintiff's desire to save on the expenses of paying the fee is not a legitimate interest in this matter (see: Civil Appeal 417/92 Attorney General v. Leibowitz, IsrSC 46(3) 414 (1992)). Subsequently, it was held that if the plaintiff has the possibility of receiving substantive-concrete relief that is not merely a declaration, the court will be inclined to classify the relief as financial, unless the plaintiff presents convincing explanations for his choice of declaratory relief, which is inherently more "vague" (see: Civil Appeal 9580/05 Glickland v. Semyonovich Chorny (Chernoy) [published in Nevo] (September 10, 2007); Civil Appeal 279/82 Friedberg v. Tel Aviv-Jaffa Municipality, IsrSC 39(2), 502 (1985); Yoel Sussman, Civil Procedure 563 (7th edition, Shlomo Levin ed., 1995)).
- Subsequently, the case law outlined auxiliary tests for the purpose of examining whether the plaintiff has a legitimate interest in claiming declaratory relief. Thus, it was determined whether the plaintiff could obtain what he wanted in another way; and that if, following the declaratory relief, there will be a need for an additional legal proceeding, the tendency will be not to allow a claim by way of declaratory relief (see: the Elzo case, para. 30). In this context, it was held that "these tests may also assist us when we come to classify the real remedy that the plaintiff seeks in a given case, for the purpose of deciding the issue of the fee", as in our case (Civil Appeal Authority 8188/14 Eurotex Textiles in Tax Appeal v. State of Israel (Customs and VAT Department), para. 6 [published in Nevo] (March 31, 2015)).
- It was further held that the burden of proving the existence of a legitimate interest in a declaratory relief claim rests with the plaintiff (see: Civil Appeals Authority 3889/09 Yateran Communications in a Tax Appeal v. Rafaeli [published in Nevo] (October 5, 2009)). In any case, if a plaintiff chooses to formulate vaguely, and thus makes it difficult to clarify the nature of the relief he is seeking, it should not be assumed in his favor that there is indeed a legitimate interest in claiming declaratory relief - which is the exception to the rule (the Elzo case, para. 30)." (Highlights in line - added).
See: Civil Appeal Authority 8835/21 Tyre v. Haddad (Nevo, 2 May 2022), paragraphs 11-13 of the judgment (hereinafter: "the Tyre case").
- In our case, we are dealing with a claim to charge the defendants for the plaintiffs' damages as a result of the non-repayment of loans they made available to Nofim Company, in light of the liability and negligence of the defendants. The plaintiffs put the amount of damage caused to them at the sum of the total loans that they made to Nofim and were not repaid by it (paragraph 2 of the statement of claim) and estimated their rate at the time of filing the claim in the sum of at least ILS 22,051,415.07.
- 00Examining the question of whether the plaintiffs have shown that they have a legitimate interest in clarifying her claim as a declaratory remedy when "[..]It was held that if the plaintiff has the possibility of receiving substantive-concrete relief that is not a mere declaration, the court will be inclined to classify the relief as financial, unless the plaintiff presents convincing explanations for his choice of declaratory relief, which is by nature more "vague" (see: the Thayer case, paragraph 11) - it shows that the plaintiffs did not meet the burden imposed on them.
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- I do not accept the plaintiffs' argument that they are unable to petition for monetary relief since the debt of Nofim and therefore the liability of the defendants has not yet been formed. Insofar as the plaintiffs' intention is that the very existence of the debt has not yet been consolidated, in light of its future repayment date in January 26, the filing of the claim does not create anything out of nothing, without setting the rivets. In the absence of liability on the part of the defendants at the time of filing the claim, the plaintiffs are not entitled to petition at this time not for monetary relief but also for declaratory relief, and their claim must be dismissed out of hand.
- Insofar as the plaintiffs' intention is that they are unable to petition for monetary relief, since at the time of filing the claim the final amount of the debt has not yet been formulated and accordingly the final rate of the alleged damage, in accordance with the case law, the fact that the amount of the claim is calculated in accordance with the data that require an assessment at this stage does not change the classification of the relief requested as monetary (see: paragraph 35 Civil Appeal Authority 7200/20 Yoor Elzo Investments in a Tax Appeal v. Aura Israel Development and Investments in a Tax Appeal(Nevo 6.4.2021), and the judgment cited there). Without setting any precedents, the plaintiffs must assess the requested relief as it is at the time the claim was filed, and they did so in paragraph 2 of the statement of claim. To the extent that amendment/change/deletion is required, the plaintiffs may petition to amend the statement of claim and their request will be heard accordingly.
- Accepting the plaintiffs' position that the requested relief cannot be granted in light of the existence of negotiations, means that a plaintiff will be able to evade payment of a fee for monetary relief in any case in which negotiations are taking place between the parties to the claim, and this is unacceptable and contrary to case law and regulations.
- Stopping the statute of limitations also does not constitute a legitimate interest in deciding the claim by way of declaratory relief and not directly while providing concrete relief. On the contrary, the fact that the filing of the lawsuit has achieved its purpose and now the defendants are not entitled to raise a claim of limitation as the plaintiffs claim, means that there is now no impediment on the part of the plaintiffs to petition for monetary relief. In accordance with the case law, a claim will be heard as a claim for declaratory relief only in a case where there is no alternative to a monetary claim. The case before us is a case of a clear monetary claim.
- In any event, since I reject the plaintiffs' argument that it is not possible to file a claim for monetary relief since at the time the claim was filed, their argument that they have a legitimate interest in petitioning for declaratory relief in order to stop the statute of limitations is also rejected, for the reasons detailed above.
- Beyond that, judicial efficiency and judicial policy (including the examination of substantive authority) also support the evaluation of financial relief. The evaluation of the monetary relief will enable both parties and the court to examine the scope of the disputes, to argue their claims in a focused and efficient manner, and to conduct the legal proceedings efficiently and in a substantive manner and in accordance with Regulations 1-5 of the Civil Procedure Regulations.
- Therefore, and in accordance with the precedent according to which the court will make limited use of its authority to dismiss a claim in limine and prefer to give the plaintiff his day in court, I permit the plaintiffs to amend the claim while petitioning for appropriate monetary relief only or together with declaratory relief and payment of fees accordingly. The amendment of the statement of claim will be by December 2, 2025.
- A statement of defense for the amended statement of claim shall be filed within 45 days from the date of the submission of the amended statement of claim.
- The plaintiffs will bear the expenses of defendant 4 in respect of this request in the sum of ILS 5,000, which will be paid within 30 days, otherwise they will bear interest and linkage differences.
Request 5 - Application to charge plaintiff 4 company in a tax appeal by depositing a guarantee to guarantee the expenses of defendant 4