Changes are required in the handling of tort claims, due to the new Civil Procedure Regulations
Dec 31, 2020
Introduction: By Itzik Simon
Under the radar of many—including contractors and construction companies—a revolutionary change has taken place in a field that, at first glance, seems purely bureaucratic: the amendment of the Civil Procedure Regulations.
So what is the connection to us, and why is this so important for the construction insurance sector?
Until now, in the case of an accident, it was customary to forward the claim to the insurance company. The insurance company, at its own pace, would allow time for filing a defense, and the legal proceedings would move slowly.
No longer. The new Civil Procedure Regulations create a new reality that requires a short response time from all parties involved. Therefore, it is crucial both to transfer the claim immediately upon receipt by the client and to provide a detailed position paper outlining the circumstances, supporting documents, or in other words: a mini-summary of the client’s defense arguments. This allows the attorney appointed by the insurance company to gain the fullest possible understanding in the limited time available to prepare a defense containing all necessary arguments.
See the important article by Asher Asban, which illuminates the issue from a general perspective while highlighting the critical role of a professional accident investigator today.
Introduction: By Itzick Simon
Under the radar of many, including contractors and construction companies, a revolutionary change has taken place in a field that is seemingly only related to legal bureaucracy: a change in the civil procedure regulations.
So what does it have to do with us and why is it so important for the construction insurance sector?
Until now, in the event of an accident, it was customary to transfer the claim to the insurance company. The insurance company, for its part, was reluctant to take the time to file a defense, and the legal action was conducted lazily.
No more. The new SDA regulations create a new reality that requires a short response time for all involved, and therefore there is great importance both in forwarding the claim immediately upon receipt by the client and in forwarding a detailed position paper of the circumstances, supporting documents, or in other words: the main points.
Defense claims from the client's perspective, so that a lawyer appointed by the insurance company can obtain the most complete picture possible, in the shortest time available to him to submit a defense containing all the claims.
See Asher Asban's important article, which illuminates the matter from a general perspective and with a spotlight on the importance of the role of a professional accident investigator today.
This article was written by Asher Asban – an engineering consultant, accident investigator, and safety expert.
1. On January 1, 2021, the new Civil Procedure Regulations will come into force, which are set to bring about a far-reaching reform in civil proceedings conducted in the courts. The purpose of the regulations, as formulated in the first regulation, is to "create procedural certainty, prevent arbitrariness, and fulfill the constitutional principles that underlie a proper and fair judicial process, in order to achieve a correct result and a just resolution of the conflict," and the regulations further state "including the existence of a fair, rapid, and efficient legal hearing, saving time and costs, preventing contradictory decisions, and preventing abuse of the judicial process."
2. Contrary to the impressive rhetoric of the regulations and the stated purpose behind them, it appears that beyond that, the significance of the regulations is actually to impose an additional burden on the parties and the litigants already at the preliminary stage and before the first pre-trial meeting, when a significant part of the legal work is done.
This should be done immediately after the case is received for the parties to handle . For example, the obligation to attach all documents to the pleadings, the obligation to hold a preliminary hearing between the parties, the declared purpose of which is to prepare for the management of the claim and to mediate the dispute between the parties, the obligation to appoint a mediator from the MOH in an attempt to transfer most cases to a mediation process, the obligation to submit all requests in the case as well as sending questionnaires to another party by the date of the first KDAM meeting, etc., along with reducing the number of pages of the pleadings with the aim of simplifying the dispute and not prolonging it with unnecessary words.
3. Below are the main points of the new Civil Procedure Regulations, with reference to each of the parties, and then regulations that relate to both parties.
1.On January 1, 2021, the new Civil Procedure Regulations will come into effect, which are expected to bring about a far-reaching reform in civil proceedings conducted in the courts. The purpose of the regulations, as stated in the first regulation, is “to create procedural certainty, prevent arbitrariness, and realize the constitutional principles underlying a proper and fair judicial process, in order to achieve a correct outcome and a just resolution of the dispute.” The regulations further state: “including the conduct of a fair, prompt, and efficient trial, saving time and costs, preventing contradictory rulings, and preventing abuse of the judicial process.”
2.Contrary to the impressive rhetoric of the regulations and their declared objective, it appears that their practical implication is the imposition of additional burdens on the parties and litigants already at the preliminary stage, before the first pre-trial hearing, when much of the legal work will need to be carried out immediately after receiving the case. For example:
•The obligation to attach all documents to the pleadings,
•The obligation to conduct a preliminary discussion between the parties, whose stated purpose is to prepare for case management and outline the scope of the dispute,
•The obligation to appoint a mediator in an attempt to transfer most cases to mediation,
•The obligation to submit all motions in the case, as well as sending questionnaires to the opposing party before the first pre-trial hearing,
•The reduction of the number of pages in pleadings to simplify the dispute and avoid unnecessary wording.
3.Below are the main points of the new Civil Procedure Regulations, with reference to each party individually, followed by regulations relating to both parties..
A. The statement of claims will contain a title, the main claims, the requested remedies and a concise description of the grounds of the claim. The second part of the statement of claims (the main claims) will not exceed 5 pages and the third part (factual argument) will not exceed 6 pages in the Magistrate's Court, and 9 pages in the District Court (exception: in a monetary claim in the District Court whose value exceeds 2.5 million NIS, then the second part will not exceed 10 pages and the third part will not exceed 20 pages).
The statement of claim will contain a list of all requested remedies and the value of the subject matter of the claim, the amount of the fee to be paid, with reference to the details in the Fee Regulations or whether the plaintiff is exempt from a fee, and a description of the existence of additional proceedings, if any. In personal injury claims, it is mandatory to attach a waiver of medical confidentiality prepared according to the wording of Form 1 in the First Appendix to the Regulations, as well as a summons to appear for the defendant according to Form 2 in the First Appendix to the Regulations.
B. A copy of any essential document and any other document used as a basis for the allegations in the statement of claims shall be attached to the statement of claims, and if the plaintiff does not have it, he shall indicate in the statement of claims who he is or where he is located, to the best of the parties' knowledge.
C. A tort claim in a medical matter must be accompanied by an opinion from a medical expert that the person intends to rely on in court.
D. In a personal injury claim, a plaintiff's affidavit containing answers to the questions detailed in accordance with Form 3 in the first appendix to the regulations will be attached to the statement of claim.
E. The plaintiff may file a response within 14 days from the date the defense was served on him.
The length of the response letter should not exceed 3 pages.
The plaintiff:
Defendant:
A. A defense will be filed within 60 days of the date the statement of claim is served on the defendant. Like the statement of claim, it will also include a title, a concise statement of the preliminary allegations, defenses, and arguments regarding the relief claimed. There is also a page limit here, similar to the statement of claim.
B. The defense will include, in addition to all the details provided to date, the deadline for submitting the defense according to the regulations.
C. A copy of any material document and any other document used as a basis for the claim in the statement of claims must be attached, and if he does not have it, he must indicate who owns it or where it is located, to the best of the party's knowledge.
D. An extension of the deadline for filing a defense will only be granted if certain conditions are met, and given the fact that the deadline for filing a defense has not yet passed (there is a real chance that the preliminary arguments for dismissing the claim outright will be accepted, investment of significant resources to defend that are disproportionate considering the circumstances of the case). The court may condition the extension of the deadline on the defendant posting a bond.
E. A preliminary claim not specified in the defense will not be raised at a later stage, unless the court has given its approval, provided that the fact was discovered after the defense was filed and was not known to the defendant previously.
A. In the margin of every document and pleading submitted to the court, the last date of submission must be noted, and if it concerns a respondent or responder, also the date on which that document was served on him.
B. Preliminary hearing: Something that did not exist before. In accordance with the new regulations, the parties will hold a preliminary hearing between themselves within 14 days from the date of the submission of the last statement of claims in the case, during which they will examine ways to streamline the procedure and reduce the dispute between them. At the end of the preliminary hearing, they will submit a report to the court according to Form 4 in the first appendix to the regulations.
C. Appointment of a mediator by the MHUT: In any financial claim that exceeds NIS 40,000, a mediator will be appointed by the MHUT. Within 14 days of the MHUT meeting, the mediator will notify the supervisor whether the parties agree to transfer the hearing to mediation.
D. List of requests: A party shall submit a list of all requests that he requests that the court consider no later than 14 days before the first preliminary hearing. No requests may be submitted after the date of filing the defense until the date of the first preliminary hearing, except for a closed list of requests specified in the regulations (examination by an expert on behalf of a party, a request to amend a statement of claims, a request to join a party to the proceedings, a request to stay proceedings, and other requests specified in Regulation 49 of the regulations). The list of requests submitted by the parties must indicate the type of request and a summary of each request. The details shall not exceed one page for each request. A request that is not included in the list of detailed requests shall not be submitted thereafter except with the permission of the court.
E. At the end of the hearing on each application, the court will rule on the costs of the application and to whom they apply, regardless of
For the expenses of the main proceedings.
F. Questionnaires: After the last statement of claims has been filed, a party may send another party a questionnaire that will include questions relating to the matter and admissibility in the cross-examination of a witness orally. The questionnaire will include no more than 25 questions, including sub-questions (in a claim in which the amount exceeds 2.5 million NIS, the questionnaire will include no more than 50 questions). Responses to the questionnaire must be completed no later than 30 days before the date of the first pre-trial conference.
G. Affidavit of Disclosure of Documents: After the last statement of claims is filed and up to 60 days before the date of the first preliminary hearing, the parties shall exchange an affidavit of disclosure of documents in their possession, and if they do not have them, they shall specify the circumstances related thereto. Requests regarding the discovery and inspection of documents are included in the list of requests that must be filed after
Submission of the defense brief or by the date of the first pretrial conference.
H. Failure to comply with instructions, including late submission of applications and failure to complete preliminary proceedings, will result in costs.
I. Witnesses: The plaintiff shall submit up to 14 days before the first pretrial conference meeting, and the defendant up to 7 days before the first pretrial conference meeting, the list of witnesses they intend to call to testify, present documents, or provide a public servant certificate. The list shall include a concise statement of the need and purpose of each witness's testimony.
J. Changing the hearing date: As a general rule, workload considerations, negotiations, or convenience considerations will not constitute a valid reason for changing the hearing date. In any case of changing the hearing date, the opposing party may be charged with the costs.
K. Legal costs: The court will award legal costs in each application, provided that the litigant has explicitly and in detail specified in his summaries of claims the legal costs as required, while attaching supporting documents.
To both litigants:
In conclusion
The new Civil Procedure Regulations require that a significant portion of the work on the case be carried out at the very beginning, before the first pre-trial conference in the case has even been held.
All of this requires a thorough and in-depth study and review of the case right from the beginning, simultaneously with the submission of the main statement of claims in the case.
Our recommendation is that lawyers must thoroughly study the new regulations and the "new" legal conduct that must be implemented, because the regulations change the rules of the game and set different performance criteria and schedules than they have been accustomed to until now. Not only that, but the entire manner of managing the case (testimony, experts, investigators, affidavits, the statement of claim, etc.) is also undergoing change.
The new regulations effectively require that the lawyer handling the lawsuit be familiar with all the intricacies of the case on the first day of handling it, to a level that a lawyer (before the new regulations) would only be familiar with at the stage of the evidentiary hearing.
All of the above requires that an attorney enlist the help of an experienced and skilled safety expert and accident investigator, as early as DAY ONE, who will assist the attorney in handling the claim, according to the new rules of the game.
This article was written by accident investigator and safety expert Mr. Asher Asban, who is, among other things, the owner of the "Safety and Law" company. You can get an impression of the group's activities on the website: WWW.ASABAN.CO.IL
Best regards,
Asher Asban
The new Civil Procedure Regulations require that a significant portion of the work on a case be carried out at the very outset, even before the first case management (CMD) hearing takes place.
This necessitates a thorough and in-depth study of the case from the very beginning, alongside the filing of the main statement of claims.
Our recommendation is that lawyers must familiarize themselves in detail with the new regulations and the “new” legal procedures that must be applied, as these regulations change the rules of the game and set different execution requirements and timelines than those previously practiced. Moreover, every aspect of case management—testimonies, experts, investigators, affidavits, statements of claim, and so on—is also undergoing change.
The new regulations effectively require that the lawyer handling a claim be familiar, from day one, with all the intricacies of the case—at a level that a lawyer (prior to the new regulations) would only have reached during the evidentiary hearing.
All of the above necessitates that the lawyer, from Day One, engage an experienced and skilled safety expert and accident investigator to assist in managing the claim according to the new rules of the game.
This article was written by accident investigator and safety expert, Mr. Asher Asaban, who is also the owner of the company “Safety & Law.” You can view the group’s activities at: www.asaban.co.il
Sincerely,Asher Asaban
מסמכים
