1 22 L.S.I. 266.

2 S.H., no. 1261, p. 188.

3 Goldstein, S., “Observations on the Report of the Committee to Investigate the Court Structure: The Problem of Split Jurisdiction at the First Instance” (1982) 12 Mishpatim 160Google Scholar. A somewhat modified English version of this article is found in Goldstein, S., “On Unifying the Israeli Trial Court Structure” (1983) 18 Is.L.R. 467Google Scholar.

4 Under Israeli Law, the Minister of Justice is empowered to promulgate and amend the Rules of Civil Procedure. See Courts Law (Consolidated Version) 1984 (38 L.S.I. 271), sec. 108. Although there is no statutory basis for the Minister being assisted by an Advisory Committee, this has long been the practice. At present the Advisory Committee is composed of eight members: the President of the Supreme Court, Justice Shamgar (Chairman), three judges of the lower courts, a representative of the Bar Association, two lawyers from the Ministry of Justice, and myself.

5 The Explanatory Notes to the Recommendations (Amended Version) August 5, 1988 (hereinafter “Explanatory Notes”), para. 2. This explanation refers, in essence, to those provisions of the Recommendations for Change in the Rules of Civil Procedure (hereinafter “The Recommendations”), contained in paras. 2, 3, and 7 thereof.

6 Explanatory Notes, supra n. 5, at para. 2.

7 The Recommendations, paras. 2, 7, and 16.

8 Id., at paras. 2, 7, and 31.

9 See The Jewish National Fund v. Katz (1958) 12(ii) P.D. 1472.

10 The Recommendations, para. 15.

11 See Goldstein, S., “Reflection on the Possibilities and Problems of Accelerating the Civil Litigation Process” (1985/1986) 7 Tel Aviv University Studies in Law 51Google Scholar; Zylbertal, T., “Costs Awarded to the State” (1986) 15 Mishpatim 389Google Scholar.

12 See Goldstein, supra n. 11.

13 The Recommendations, para. 29.

14 Rakivitz v. The Tax Assessor (1964) 18(iv) P.D. 729.

15 The Recommendations, paras. 3, 7, and 36.

16 Id., at paras. 3 and 7.

17 Id., at para. 34.

18 Explanatory Notes, para. 5.

19 Ibid.

20 The Recommendations, para. 36.

21 Explanatory Notes, para. 5.

22 See Ginossar, S., “The Law Delay” (1977) 31 HaPraklit 29Google Scholar.

23 These Rules are found currently in Chapter 21 of the Rules of Civil Procedure, 1984.

24 Rules concerning Compensation to Victims of Traffic Accidents (Summary Process for Periodic Payments) 1976. Compare also the authority of the court to order a litigant to appear in person at the pre-trial conference. Rules of Civil Procedure, 1984, Rule 146, and the conduct of actions initiated by originating summonses, Rules 248-258.

25 Compare Goldstein, S., “Derivative Actions: The Procedure of their Initiation and Prosecution” (1984) 14 Mishpatim48, at 66–67Google Scholar.

26 Amendment No. 9, 1988, supra n. 2, at 208-209.

27 In addition to the wealth of international literature on this subject, the interested reader may find discussions of the use of American-style class actions in the Israeli context in a number of publications by this author: Goldstein, S., Development of Class Actions as a Consumer Protection Device(Report to the Israel Consumer Council) (Jerusalem, 1978, in Hebrew)Google Scholar; Goldstein, S., “Class Actions: What and Why?” (1979) 9 Mishpatim 416Google Scholar; Goldstein, S., “Class Actions — A Surprising Development in England” (1981) 11 Mishpatim 412Google Scholar; Goldstein, S., “La Protezione degli interessi diffusi nel diritto processuale civile israeliano” (1984) 38 Rivista Trimestrala di Diritto e Procedura Civile 1220Google Scholar. See also Goldstein, S., “Class Actions in Israel”, in Fassberg, C., ed., Israel: Reports to the 13th International Congress of Comparative Law (Jerusalem, 1990) 34–55Google Scholar.

28 For a more comprehensive discussion of the Chapter IX(1) class action, see S. Goldstein, “Class Actions in Israel”, supra n. 27.

29 Cappalletti, M.and Garth, B., “General Report” in Access to Justice, Cappalletti, M., gen. ed., (1978) vol. I, p. 1Google Scholar.

30 The literature on this topic is very extensive. For leading general discussions on the topic, see Cappalletti, M., “Governmental and Private Advocates for the Public Interest in Civil Litigation: A Comparative Study” (1975) 73 Mich. L. R. 793CrossRefGoogle Scholar; Cappalletti, M.and Garth, B., “The Protection of Diffuse, Fragmented and Collective Interests in Civil Litigation”, in Habscheid, W.J., ed., Effectiveness of Judicial Protection and Constitutional Order (Bielefeld, 1983) 117Google Scholar. See also S. Goldstein, “La Protezione degli interessi diffusi nel diritto processuale civile israeliano”, supra n. 27.

31 The lack of compensatory purpose in class actions is most evident in what has been termed the “fluid recovery” class action. In this type of class action, due to a large number of potential claimants and the extremely small monetary value of the individual claims, it is not expected that the bulk of the recovery will directly compensate damage claimants, but rather that it will be used in some other fashion by a kind of cy. pres. Moreover, the amount paid by the defendant will be determined not by the individual claims proved, but by the total amount of unlawful income he has received, which income can generally be determined by the records of the defendant. It is clear that the twin purposes of such fluid recovery class actions are deterrence and compelling offenders to disgorge unlawful profits, not compensation. In other class actions that involve a smaller number of claimants, with relatively large individual claims, it is expected that almost all, if not all, of the sums that the defendant is compelled to pay will go to injured claimants and the total amount of the defendant's payments will not exceed by much, if at all, the total amount of the claims proved. This type of class action clearly has a not insignificant compensatory element. Yet even here the primary justification given for allowing such actions is deterrence — both general and specific — not compensation. See, generally, sources cited, n. 30 supra; see also Jacob, J.I.H., The Fabric of English Justice (London, 1987) 81–82Google Scholar.

32 37 L.S.I. 6.

33 The view of this process as “privatization” of law enforcement is, of course, based on the law enforcement perspective. From another perspective, i.e., that which views the civil litigation process as one that has traditionally been concerned with the resolution of private disputes and not with law enforcement, this process can be viewed as the “publicization” of the civil justice process. See Garth, B.G., “Privatization and the New Formalism: Making the Courts Safe for Bureaucracy” (1988) 13 Law and Social Inquiry 157CrossRefGoogle Scholar.

34 See S. Goldstein, “Class Actions: What and Why?”, supra n. 27, at 431-438.

35 State of Israel v. The Hofer Fund (1988) 42(iii) P.D. 32.