Family and Inheritance LawSection 8 of the Civil Wrongs Ordinance [New Version] provides that every judge, or anyone performing a judicial function, is immune from any claim for a tort committed in the course of their judicial function:
“8. No action shall be brought against a person who is himself a court or tribunal or one of its members, or who lawfully performs the duties of such a person, or against any other person performing judicial acts, including an arbitrator, for a tort committed in the performance of his judicial function.”
This is basic and extremely important legislation for any state that wants its judges to do their work without fear of being sued for damage caused by an erroneous decision. No one would agree to take on a judicial role without such a statutory provision.
That said, the State is the employer of the judges, and the question is whether, like any employer, the State bears vicarious liability for judicial decisions that cause damage, or whether the above provision also grants the State, as the judges’ employer, immunity from such a claim.
On 02.09.18 the Supreme Court gave judgment in LCA 3359/18 State of Israel v. Musa Ibrahim Ali Adam (published in Nevo). In this judgment the Supreme Court expressly held that the immunity granted by the law also applies to the State, and no claim may be filed against it.
The case concerned a Sudanese national who, because of a mistaken identification, was held in detention for two years. For this failure he sued, among others, the Ministry of Justice on the basis of vicarious liability.
The judgment sets out different approaches to the issue. One approach was to allow a vicarious liability claim against the State only “in very extreme cases of very gross negligence”. Another approach was to allow a claim only where “the judicial act was done with intent to cause harm through abuse of authority”.
As noted, the Supreme Court held that the immunity applies absolutely, to every kind of negligence, not only to office holders but also to the State. Beyond the self-evident reason of wishing to preserve the judicial independence of judges, the judgment set out three main reasons: concern about harming public trust in the judicial system, concern that a tort proceeding would attract wide public attention, and of course a flood of claims for judicial negligence.
Following this judgment, a series of vicarious liability claims filed against the State were dismissed one after another; see, for example, CC (Netanya) 7396-12-17 Bassam Ibrahim v. Lilach Gafni (published in Nevo, 03.03.19) and Summary Civil Claim (Tel Aviv) 23422-03-19 Uri Shmuel Zusman v. State of Israel – Tel Aviv Regional Rabbinical Court (published in Nevo, 25.11.19).
The Supreme Court was aware of the discomfort in a situation where an injured party is not allowed to remedy their damage and receive compensation, but held that the alternative, narrowing judicial immunity or imposing vicarious liability on the State, would bring “little benefit, if any, alongside great and certain harm”.
When I read about “little benefit, if any, alongside great and certain harm”, that is, a small number of people whose negligently caused damage would be remedied, set against the great harm this would cause, I could not help recalling the saying “It is better and more desirable to acquit a thousand sinners than to put to death one innocent person some day”, the immortal saying attributed to Maimonides and quoted in CrimA 543/79 Avishai Nagar v. State of Israel, PD 35(1) 113.
With all due respect, I find it hard to accept the sacrifice of those harmed by the system through no fault of their own (in effect, abandoning them) on the altar of the good of the system as a whole.
I fully agree that a judicial office holder must have absolute immunity from any claim for damage resulting from their decisions, however negligent they may be. Any infringement of this principle would immediately harm the basic ability to appoint judges and allow them to do their work.
At the same time, I believe the outcome of the judgment in the Musa Ibrahim Ali Adam case is wrong as far as the State’s vicarious liability is concerned, and it is no accident that the Court “shifted uncomfortably” when it mentioned the injured parties who are left helpless.
Let us return to the three reasons: concern about harming public trust in the judicial system, concern that a tort proceeding would attract wide public attention, and of course a flood of claims for judicial negligence.
As for public trust in the judicial system: will granting immunity to the State, even in cases of very gross negligence or even malice, increase public trust or harm it? The answer to this question is not simple, and it is unclear whether the Supreme Court, standing at the center of the question, is the right body to decide it.
This seemingly simple determination, that public trust in the judicial system would be harmed if injured parties were allowed to sue even the State alone, separately from the judicial office holder, is not so self-evident.
Do we as a society want the State to be exempt from compensation even in extreme cases where judicial office holders acted with “very gross negligence”? Or perhaps even with malice?
The second reason, concern that a tort proceeding would attract wide public attention, is both problematic and capable of being mitigated.
First, it is unclear what the concern about wide public attention is based on. Judges have been embroiled in various affairs in the distant and recent past, and the public attention was no wider than in other affairs, perhaps even narrower. Much narrower (see, for example, the Rogozin and Siemens affairs).
Second, it could be provided, for example, that hearings in these claims be held behind closed doors and not published at all. Other solutions can also be found to reduce the concern about wide public attention.
This brings us to the third reason: a flood of claims for judicial negligence. Every lawyer knows this argument, simply because it comes up again and again in a long list of matters, from applying an approach that treats the ruling in FamLA 919/15 as a change of circumstances in itself justifying a change in the amount of child support, to examining the possibility of suing a court-appointed expert (see LCA 1992/15 M.A.G.N. Consulting and Property Management Ltd. v. Eliram Lipa, published in Nevo, 06.08.15).
I have news for those who fear the courts being flooded with claims: the courts are already flooded with claims anyway, and despite these fears of further flooding, to date no data has been published in the media about a critical flood of claims on a specific subject for which an early warning of flooding had been given.
For those in whom the concern still lingers, here too solutions can be found. If the basic idea is to allow a claim only “in very extreme cases of very gross negligence” (an idea I support), a preliminary screen could be set up, for example: a judicial body that decides whether the case prima facie is indeed such a case, and immediately dismisses in limine any case that does not meet this criterion.
In closing, I want to tell you about a personal case of mine. A few years ago I represented 2 of 3 residents in a building that was supposed to undergo a TAMA 38 project.
The residents fell out among themselves, the project stalled, and in these circumstances I decided to stop the representation and told the clients that if they wanted representation in the future, after the disputes were resolved, they would know where to find me.
In hindsight it turned out that a claim had been filed with the Land Registration Superintendent, and later an appeal against that judgment was filed with the District Court in Lod. Of course I was unaware of the whole matter, not as counsel, not as a party, not as a witness and not in any other way.
On 03.10.18 the District Court in Lod gave judgment, by a panel of Judges Michal Nadav, Halit Silash and Hana Kitzis. A review of the judgment shows that the third resident, whom I did not represent, claimed that I was in a conflict of interest with the contractor. The District Court accepted this claim on appeal and held that I was indeed in a conflict of interest with the contractor because I am the contractor’s partner (which never was and never existed, but, as noted, was never checked with me).
This judgment was given without anyone contacting me, without my being a party to the case, without anyone asking for my position on the matter and without my even being aware that the proceeding existed.
There is no need to stress the right of every person to be present at the hearing of their matter and to give their position before a judgment is given in it. It is so basic that it need not even be mentioned, but if one must, one can recall the Supreme Court judgment given about 70 years ago: “Every litigant has the right to be present (together with his legal advisers, if any) throughout the hearing”, see CrimA 152/51 Tripus et al. v. Attorney General, PD 6 17, 23.
A judgment given in a person’s absence (in this case, where that person was not even joined as a party to the case), in breach of a rule so basic that one need not even be a lawyer to know it, is a judgment given “in a very extreme case of very gross negligence”.
In the decision of Ombudsman Uri Shoham in case 617/19/Central District-Lod, dated 27.11.19, on a complaint filed against the above panel, the following was determined in sections 16-17:
“16. Having reviewed the material before me and the judges’ response, I am of the view that in the circumstances set out above the District Court should have exercised extra caution, given that Adv. Richter’s position was not heard in the lower instance either, and should not have included in the judgment the statements written about him without asking for his response in writing or orally.”
“17. In the state of affairs described above, the Court should have contacted the complainant and asked for his response to the claims made against him, or at the very least refrained from mentioning his name or identifying details about him, so that the findings in the judgment could not be used against him…”
The erroneous and grossly negligent judgment given by the District Court was published and attracted wide public attention, among other things through articles on the internet, and caused great damage to my ability to represent clients in cases in this field.
This unfortunate case makes me reconsider the second reason, the concern that a tort proceeding would attract wide public attention. Why is it perfectly fine for me to be harmed by public attention, but if I wish to receive compensation from the State for such gross negligence by its agents, there is a concern about public attention?
In summary, as is well known, power corrupts, and unlimited power corrupts without limit. It is precisely the complete absence of vicarious liability that will seriously harm public trust in the legal system, especially in cases of judgments given with malice or very gross negligence.
A basic rule of behavioral economics is that the frequency of a given behavior is a function of costs and benefits. Just as the absence of a sanction for false complaints encourages them (see the statistics on false complaints out of all complaints), the absence of a sanction for erroneous judicial decisions, even if only against the State through vicarious liability, will encourage a light finger on the trigger.
In my view, judicial office holders should be given absolute immunity from claims (except in cases of malice), but the situation must be different when it comes to the State. After planning and making the necessary adjustments and changes, in very extreme cases of very gross negligence, a vicarious liability claim against the State should be allowed. In cases of malice, a claim should be allowed against both the judicial office holder and the State.