All of these could be translated into an exam based on real data.
In this way, the counter-plaintiffs decided to deviate. Perhaps they were afraid to disclose their activity data in the framework of the proceeding, taking into account the fact that they were competing with Max Stock. Perhaps their decision was based on a different reason. In any case, no reports were submitted in the course of the proceeding, from which it would be possible to learn what the actual profits were, in the years that have passed since the concessions were canceled.
The expert, Dr. Mofkadi, explained his method of work, but this is inconsistent with the ruling of the Supreme Court in the Anglo-Saxon case, which I discussed above (see above, at paragraph 110). It is true that in that case the court was correct to award compensation nevertheless, in that case the rule was based on a machine, and the party wishing to deviate from it must explain and justify it. An anchor was also found there that enabled the assessment to be made. No such thing was presented to me in relation to the Sderot branch.
It is not only the subtleties of computational-economic poverty on the agenda. While the chain's activity continues, it is important to understand the true data in order to see the map of the damages in practice. The continuation of the economic activity reflects the burden of reducing the damage imposed on the counter-plaintiffs (see above at paragraph 96). In the optimistic cases, the new activity can be so successful that it will eliminate the damage altogether. In the less optimistic cases, the picture of things is different, and there is still room to discuss it in order to derive the compensation that is due in practice. This is clear in our case when the Sderot branch is still active to this day, and the chain as a whole sees a blessing in commission and has even expanded to other branches. The counter-plaintiffs claim that the Sderot branch is a loss, but this has not been substantiated by them.
- During Mr. Shimshon's cross-examination, counsel for the counter-plaintiffs proposed the possibility that he would provide the financial statements in his possession, in response to a question from counsel for Max as to whether the branches in Bat Yam and Sderot were profitable.
However, this could not have been done in the aforementioned manner at the cross-examination stage. The counter-plaintiffs should have filed a request to add new evidence, stating the reasons why evidence had not been submitted so far, and with an affidavit lawfully attached. The acceptance of such evidence at such an advanced stage, when it could have been submitted earlier, is not at all self-evident. It requires consideration of the stage at which the proceeding is taking place, the nature of the evidence, the existence of an explanation for its failure to be submitted earlier, its contribution to the discovery of the truth, its ability to prevent miscarriage of justice, the consideration of the rights and interests of the opposing party, and more (see the hearing in Civil Appeal 9114/16 Tisona v. Cohen (published in the Databases; 2017; paragraphs 21-22)).