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Preventing a Civil Defendant from Leaving the Country as a Form of Preliminary Relief*
Published online by Cambridge University Press: 16 February 2016
Extract
All legal systems have long recognized the need to provide the plaintiff with provisional relief of various types so as to insure that, during the pendency of the legal proceedings, the defendant does not take actions that would frustrate the possibility of enforcing the plaintiff's judgment should one be obtained.
While recognizing the need to provide such relief, the law has, however, also been faced with an opposing set of values. That is, provisional relief is, by definition, relief provided before the plaintiff has proven the defendant's liability. In other words, the coercive power of the courts is sought to be brought to bear, whether in the form of sequestration of the defendant's property or by an order directed against him personally to restrain from acting as he otherwise would, before it is determined definitively that he is liable to the plaintiff. This is a drastic step indeed—a restraint of the defendant's property or liberty prior to a definitive adjudication of his liability.
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- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1985
References
1 See, e.g., Mareva v. International Bulk Carriers, [1975] 2 Lloyd's Law Reports 509; Z Ltd. v. A-Z & AA-LL, [1982] 2 W.L.R. 288, [1982] 1 All E.R. 556, C.A.; C.B.S. United Kingdom Ltd. v. Lambert, [1982] 2 W.L.R. 748, C.A. See generally, Casson, D.B. & Dennis, I.H., Modern Developments in the Law of Civil Procedure. (London: Sweet & Maxwell, 1982) 43–47Google Scholar.
2 American Cyanamid Co. v. Ethicon Ltd., [1975] 2 W.L.R. 376.
3 Rules of the High Court, Order 29, Rules 9–18. By mentioning these three recent English developments, we do not mean to suggest that they are all positive developments. Without going into the issue at length, we would suggest that while the Mareva injunction and the interim payment rules are, indeed, positive developments, the American Cyanamid decision is not. See, in this regard, Jacob, J.I.H., The Reform of Civil Procedure Law (London: Sweet & Maxwell, 1982) 268–269Google Scholar.
4 The only real exception to this is the more limited availability of interim monetary relief in Israel than, for example, in England. In the latter country such payments, see n. 3 supra, are now generally available in all actions for damages as well as in traditional maintenance suits. In Israel, on the other hand, in addition to traditional maintenance claims, interim monetary payments are available only as to road accident victims. See Road Accident Victims (Compensation) Law 1975, 29 L.S.I. 311, 312–313, sec. 5. Yet, in practice this difference is not very significant. Maintenance claims and road accidents represent the most typical situations in which a plaintiff may be dependent on receiving interim payments in order to support himself and his family until the completion of the litigation. Moreover, in another typical situation, work accidents, an injured Israeli worker is not required to pursue a tort remedy but is protected by insurance. Finally, in practice, use is only infrequently made of the English interim monetary relief rules.
5 See Israeli Rules of Civil Procedure 1984 (hereinafter I.R.C.P.), Rules 360–375.
6 I.R.C.P., Rules 376–385.
7 See, for example, The United Nations Universal Declaration of Human Rights, para. 12.
8 See Hammer v. Reich, (1957) 14 P.M. 396.
9 See infra nn. 32–41 and accompanying text.
10 See generally, Shochetman, E., “On Orders of Ne Exeat Regno Against Judgment-Debtors and the Authority of the High Court of Justice to Review Procedural Orders of Rabbinical Courts,” (1984) 14 Mishpatim 83Google Scholar.
11 With the exception of a very limited provision in English law, discussed below in the text, which is not used in practice, we have been unable to discover any real counterpart to the Israeli procedure in the law of any major European nation. We have been advised that Swedish law once contained a limited provision, which was not used extensively and has recently been abolished, which could have been invoked to prevent debtors from leaving the country. We have also been advised that in Malta defendants are regularly prevented from leaving the country in a manner similar to that of Israel. We are indebted for the above information about Sweden and Malta to the Hon. Anders Anderson (Sweden) and Prof. J.M. Ganado (Malta) respectively. It should also be noted that Sir J.I.H. Jacob has written that “a power to arrest the person of a defendant who is about to leave the country before trial … exists in some Commenwealth countries, e.g., in some provinces in Canada and one can see its value in a place like Hong Kong, where people flit in and out and seem to be able to amass a great quantity of debts in the short while that they are there.” J.I.H. Jacob, supra n. 3, at 269, We, however, have not been able to verify the reference to some Canadian provinces. If such a procedure does exist in these provinces, it is clear that it is not used extensively. On a close reading of the above quotation it is also seen that the author does not expressly state that such a procedure does exist in Hong Kong. As to the value of such a procedure in a place like Hong Kong, see infra nn. 23–32 and accompanying text.
12 For a thorough discussion of the English legal history related herein, see Felton v. Callis, [1969] 1 Q.B. 200.
13 Ex parte Brunker [1734] 3 P. Wms. 312, 313–314, quoted in Felton v. Callis, supra n. 12, at 206.
14 See Felton v. Callis, supra n. 12, and the cases cited therein.
15 See J.I.H. Jacob, supra n. 3, at 269. Moreover, the Report of the Committee for the Enforcement of Judgments Debts issued in 1969 recommended the abolishment of this power altogether. Ibid. We have, however, recently been advised by Sir J.I.H. Jacob that a limited use of the unit may be in the process of revival as ancillary to Mareva injunctions in order to prevent a defendant from leaving the country before disclosing his assets. See n. 21 infra and accompanying text.
16 Our reference is, of course, to the temporary attachment procedure that is generally used in Israel, I.R.C.P. Chapter 28: Preliminary Relief; Article A: Temporary Attachment. We should, however, note that there also exists another temporary attachment mechanism which is found not in this Article of Chapter 28 but rather in Article B which is entitled “Preventing Evasion and Disposing of Assets,” which Article also includes the Rules discussed herein concerning preventing a defendant from leaving the country. This second temporary attachment provision, Rules 386–387, provides: “If a complaint has been filed and the court or registrar are convinced on the basis of an affidavit or other evidence, that the defendant is about to remove his assets, in whole or part, from his possession or from the territory of the State, with the intention of disturbing or delaying the execution of the judgment that may be obtained against him”, the court or registrar are authorized to issue a type of rule nisi to compel the defendant to do one of the following: (1) to post security from which it will be possible to satisfy the judgment; or (2) to appear and to demonstrate why he should not be compelled to deposit such security. Contemporaneously with the issuance of this rule nisi, the court may order a conditional temporary attachment of the defendant's assets. If the defendant neither deposits the security nor demonstrates that he should not be compelled to do so, this conditional temporary attachment is made absolute, i.e., it becomes an ordinary temporary attachment. This method of issuing a temporary attachment has been in the Israeli Rules of Civil Procedure since the Mandatory Rules of 1938. Yet, it is almost never used for it is far more demanding in its conditions than is the generally used temporary attachment procedure discussed in the text. Comparing it with the generally used procedure demonstrates the ease by which the latter may be obtained.
17 The lack of a criterion as to the probable success of the plaintiff is obvious on the face of the Rules. It was, however, dramatically emphasized in the District Court opinion in The Israeli Commercial Association v. Kraugrauris, (1975) 85(b) P.M. 496, concerning Rule 380 which requires the plaintiff to deposit special security if the order preventing the defendant from leaving the country is issued ex parte. In such event the security is payable to the defendant, without any need for him to prove that he has suffered actual damage, if the court is convinced that the request for the order preventing the defendant from leaving the country was “not reasonable” or not necessary for the purposes set forth in Rule 376. In this case, following the grant of such an ex parte order and the deposit of security, the complaint was summarily dismissed, whereupon the defendant demanded the payment of the security on the grounds that the request for the order was not reasonable as the plaintiff's claim was frivolous on the merits. The court rejected this argument on the grounds that since in granting an order preventing the defendant from leaving the country the court gives no consideration at all to the merits of the plaintiff's claim, the merits of the claim are also not relevant to the question of whether the request for an ex parte order is “not reasonable” in the meaning of Rule 380.
18 (1983) 37 (ii) P.D. 701Google Scholar.
19 (1952) 6 P.D. 112Google Scholar. See also Somech v. Ozer, (1970) 24 (ii) P.D. 801, 805 in which Sussmann, J. stated: “One who brings an action against a local defendant, expects, prima facie, that if he obtains a judgment, it will be satisfied from the assets of the defendant in the country. To secure the claim these assets may be attached, but to the extent that this is insufficient to guarantee the satisfaction of the debt, either because it is not possible to discover the whereabouts of these assets or for other reasons, the court is authorized by Rule 376 to prevent the defendant from leaving the jurisdiction, in order that at the end of the litigation the plaintiff will not find himself frustrated.” (emphasis added).
20 Compare, however, the quotation from Sussmann, J. supra n. 19.
21 See C.B.S. United Kingdom Ltd. v. Lambert, supra n. 1.
22 See the Wage Protection Law 1958, 12 L.S.I. 100.
23 See, Rozov v. Duda, (1964) 18 (iii) P.D. 412; Kanti v. United Svili Film, (1969) 23 (i) P.D. 505; Froelich v. Froelich, (1969) 23 (i) P.D. 701; Yofe v. Yofe, (1976) 30 (i) P.D. 333.
24 Somech v. Ozer, supra n. 19, at 806. It should be noted, however, that the courts, while constantly adhering in theory to this rule, have not always been totally consistent in applying it. See Shechter v. Frezenfore, (1975) 29 (ii) P.D. 835; Karpol v. Export Credit Corporation, (1980) 34 (i) P.D. 791; Terez v. Mohiv, (1984) 101 (b) P.M. 375. This inconsistency in application is also related to a recurringly stated exception to the rule that allows preventing a foreign defendant from leaving the country if he has assets here and it is feared that in leaving the country he will also remove such assets. In our view, this exception is illogical and unjustified. We have previously discussed at length the situation involving a defendant with assets in Israel. Moreover, when the defendant is a foreign resident there is an additional burden imposed upon him by forcing him to remain in Israel. As stated by Sussmann J., concerning the difference between preventing a local defendant from leaving the country and preventing a foreign defendant from doing so: “Despite the fact that the order limits the movement of the local defendant, it does not hinder him from continuing his regular activities, nor is the defendant cut off from the place of his residence and his customary surroundings.” Somech v. Ozer, supra n. 19 at 805.
25 The position discussed herein which we attribute to Ben-Porat J. has not been expressed by her directly in any writing. However, it is found in two secondary sources that refer to her position. The first is the Supreme Court decision Froelich v. Froelich, supra n. 23, which reversed her decision in this matter when she was then the President of the Jerusalem District Court, and the second is a student edited report of her lectures at the Faculty of Law, The Hebrew University of Jerusalem: Ben-Porat, M., Civil Procedure, (Jerusalem, Akademon, 1976, in Hebrew) vol. 2, pp. 97–103Google Scholar.
26 See E. Shocheitman, supra n. 10, at 92.
27 See, generally, Sussmann, Y., The Law of Civil Procedure (Tel Aviv, Boursi, 4th ed. 1973, in Hebrew) 688–691Google Scholar.
28 Ibid.
29 See the Wage Protection Law 1958, supra n. 22. See also, Execution Law 1967, 21 L.S.I. 112, sec. 50(b).
30 Execution Law, supra n. 29, sec. 74.
31 I.R.C.P., Rule 376(b) which exempts maintenance claims from the minimum value of a claim (today 25,000.— Israeli shekel) which is a prerequisite for ordering a defendant not to leave the country; and Rule 380(a) which exempts maintenance claims from the requirement of the deposit of special security if an order preventing a defendant from leaving the country is issued ex parte.
32 For a comprehensive discussion of the Mejelle and its place in Israeli law and history, see Friedmann, D., “The Effect of Foreign Law on the Law of Israel: Remnants of the Ottoman Period,” (1974) 10 Is. L.R. 192Google Scholar.
33 See Kovetz v. Kovetz, (1952) 6 P.D. 12. See also Havard v. Havard, (1963) 17 (ii) P.D. 747.
34 See n. 19 and accompanying text.
35 Abolition of Mejelle Law, 1984, S.H. 156.
36 S.H. 195. Prior to the adoption of this “consolidated version” the identical provision was found in the Courts Law 1957 (11 L.S.I. 124) sec. 46.
37 (1957) 11 (iii) P.D. 1362.
38 Id., at 1363.
39 See, generally, Shapira, A., “The Protection of Human Rights in Constitutional Law in Israel,” in Israeli Reports to the Ninth International Congress of Comparative Law, Englard, I., ed. (The Harry Sacher Institute for Legislative Research and Comparative Law, The Hebrew University, Jerusalem, 1974) 105Google Scholar; Shapira, A.. “The Status of Fundamental Rights in the Absence of a Written Constitution,” (1974) 9 Is. L.R. 497Google Scholar; Shetreet, S., “Reflections on the Protection of the Rights of the Individual: For m and Substance,” (1977) 12 Is. L.R. 32CrossRefGoogle Scholar.
40 It should be noted that research on the effects of the planned repeal of the Mejelle, which was commissioned by the Ministry of Justice and prepared by Professors Ruth Gavison and Gabriela Shalev under the auspices of the Harry Sacher Institute for Legislative Research and Comparative Law, Faculty of Law, The Hebrew University of Jerusalem, while recommending the perpetuation of the provisions of paragraph 656 in Israeli law following the repeal of the Mejelle, specifically recommended that this be accomplished through primary legislation rather than by the enactment of a new Rule of Civil Procedure. This recommendation was based on the view of the authors that “paragraph 656 is broader than the Rules of Civil Procedure and may be described as a substantive provision the subject of which is satisfaction of a debt prior to the filing of a judicial complaint and perhaps without any connection to the filing of a complaint.”
41 Whitehouse v. Partridge, (1818) 3 Swan. 365, 379, quoted in Felton v. Callis, supra n. 12, at 212.