As a matter of fact, I do not doubt and do not rule out the existence of red flags or suspicions relating to the activities of the plaintiffs that arose in the hearts of the bank's employees, including - there is no dispute that the plaintiffs' parent company, from which Toledano receives dividends - Paragon EX is a company incorporated in the Virgin Islands and a colony in the Isles of Man - both countries recognized as OFF SHORE countries and "tax havens"; Moreover, two UFX companies that are clients of the plaintiffs, incorporated in the OFFSHORE COUNTRIES - UFX TRADE in Belize and UFX GLOBAL in Vanuatu and all of the plaintiffs' clients are active in Cyprus; the bank also raised suspicions regarding the activities of the plaintiffs' clients, including the fact that UFX deals in binary options; the bank raised suspicions regarding the connections between the plaintiffs and their clients, whether directly owned or since the client companies are owned by Paragon E.X.; suspicions arose regarding the involvement of a public figure - Dennis de Young - in the company's activities UFX - the plaintiffs' client; there was doubt as to the plaintiffs' clients' end customers, including whether these clients were from enemy countries, or countries defined as countries at risk; and investigations and criminal proceedings were conducted on suspicion of tax offenses against Toledano and against the plaintiffs' additional authorized signatory - Mr. Saar Pilosof.
The problem is that, as detailed above, the existence of red flags is capable of leading to the client's catalog as a high-risk customer, and accordingly it can lead to taking more significant risk-preventive actions, but - and this should be emphasized - they do not in themselves lead to a decision regarding the closure of the account, especially where the customer is not given the opportunity to remove the suspicions that arise from the existence of the red flags. Thus, in the case before us, the red flags as detailed can support suspicions regarding activity related to money laundering - both in light of the nature of the activity of the plaintiffs' clients and in light of the possible connections between the clients and the plaintiffs and the lack of clarity regarding the nature of the activity, its economic logic and the payment of tax thereon. However, there was room to reflect these concerns to the customers and allow them to submit documents that could have been removed. This includes, in the framework of a letter dated February 12, 2017, in which, as noted above, the requirements presented were not communicated to the plaintiffs' customers, there is a list of demands that includes a demand to receive orderly lists of the countries in which the group operates, licenses, up-to-date compliance documents, tax forms, clarifications regarding the relations between the companies, and the like. However, the bank, as stated, did not conduct a lawful process when it did not communicate to its customers and did not reflect its demands to them, in order to give its customers the opportunity to deal with the suspicions and produce documents.
- Without derogating from the aforesaid, with regard to the proceeding that took place by the Bank, I find it necessary to note also the manner and in particular the scope of the evidence, as presented by the Bank in the framework of the proceeding in court, with respect to the proceeding that allegedly exists, since I am of the opinion that his conduct strengthens the conclusion as to the invalidity of the proceeding as taken by the Bank. In this context, I am referring to the bank's failure to testify witnesses and present relevant documents in the framework of the legal proceeding. The bank's omission, in this regard, has a double significance - first, it constitutes a breach of a judicial order, since the bank violated a document disclosure order in the framework of which it should have disclosed any relevant document that exists or that was discovered after investigation and demand. Second, it is sufficient to teach a negative evidentiary presumption against the bank's version, and accordingly, if such witnesses or evidence had been brought, it would have been sufficient to testify in a manner contrary to the bank's version [see Civil Appeal 548/78, Sharon v. Levy PD 35 (1) 736, 760; Civil Appeal 55/89 Koppel (Self-Driving Ltd.) v. Talker Company Ltd., 44(4) 595 602].
With regard to the bank's failure to testify relevant witnesses, it can be pointed first and foremost to its failure to testify to the testimony of Ms. Sigal Sadi Mantin - who who, as it appears from the electronic messages, made the decision regarding the closure of the account and in consultations that took place between the bank's employees, was the one who had the information and the answers to the question of why it was decided to close the account [see, for example, her e-mail message dated November 23, 2016, in which she asks that a closure letter be drafted, and yes, to its notice, which was brought in paragraph 56 above of the judgment, in which it details the reasons for which the closure letter was requested]. Moreover, this witness is the one who allegedly has personal knowledge regarding some of the allegations raised against Toledano by the bank, including the allegations that he threatened her and Chen Gabbay, that it was agreed with him in July 2016 that he would no longer receive dividends into the account, it was agreed that the dividend that was deposited in the account in November 2016 would be returned, and it was agreed with him that the account would be closed. In addition, the bank did not testify about the employee Chen Gabbay, with whom a large part of the relevant correspondence is present, and moreover, he was allegedly present at some of the meetings with Ms. Sigal Sadi Mantin. Under these witnesses - who were at the heart of its dealings with customers, the bank chose to testify with the branch manager, Mr. Shaulson, whose testimony indicates that he was not the one who made the decisions, and moreover, most of his affidavit and testimony are not his personal knowledge [see his testimony at the hearing on May 15, 2018 on page 101 according to which all the indications attached to his affidavit were not collected by him, his testimony on page 110, lines 29-34 and accordingly Sigal is involved in all the details and his testimony on page 109, lines 15-18 according to which the decision regarding the closure of the account Received by his deputy or the client's referent].