This is not the case before us. In both the criminal and civil proceedings before us, the plaintiff repeatedly claimed that he did not know about the planning status of the "apartment" prior to its purchase, and therefore, we do not have before us a situation of raising contradictory arguments for the formation of a judicial estoppel.
- In the matter Article 42 To the Evidence Ordinance -
Section 42A(a) The Evidence Ordinance states as follows:
"The findings and conclusions of a final judgment in a criminal trial, which convicts the defendant, will be admissible in a civil trial as prima facie evidence of whether the convict or his successor or a person whose liability derives from the responsibility of the convict, including the person who owes the judgment, is a litigant in civil law."
Section 42C:
"If evidence as stated in section 42A is submitted, the convict or his successor or a person who is liable for the judgment may not bring evidence to contradict it, or evidence that has already been heard or submitted in the criminal trial, except with the permission of the court, for reasons that will be recorded and in order to prevent a miscarriage of justice."
Notwithstanding the restrictive approach in granting permission to bring evidence to the contrary under section 42C of the Evidence Ordinance, it was ruled that this permission should be granted "where the feeling of the presiding judge is that there is liable to cause a 'manifestly unjust result' or one that 'severely deprives the defendant of his defense' (see Civil Appeal 1518/15 Musa Khalaf v. National Insurance Institute et al. [Nevo] (March 8, 2015) and the case law cited there, Civil Appeals Authority 9759/16 Majdi Abu Mor et al. v. Tax Authority et al. [Nevo] (April 7, 2017)).
This is the case before us. The criminal proceeding focused on the question of the plaintiff's guilt in relation to the offenses attributed to him in the indictment, which concern the use of land in deviation from the permit. The question of the defendants' responsibility in drafting the sale agreement and the declarations included therein was not discussed at all in the criminal proceeding. In other words, the plaintiff was not given his day in court to prove his claims against the defendants, both on the contractual level and on the tort level, in all matters relating to the circumstances of the drafting of the sale agreement, and it is not possible to block his way in this matter, taking into account the right of access to the courts, which is a right of constitutional status. It should be emphasized that one of the rationales underlying the provision of section 42C of the Evidence Ordinance is that a party should be given his or her day in court, and that the court should not be bothered to discuss the same factual issue that has already been discussed and decided in the criminal proceeding (see Prof. D. Friedman, "Criminal Judgment as Evidence in Civil Law", Hapraklit 25(a) 92). However, in our case, when it was proven, as stated, that the plaintiff was not given time to prove his claims against the defendants, the justification for blocking him from bringing evidence, even if it contradicts the determinations in the criminal proceeding, is omitted.