Adv. Gill Nadel, Shay Babay
It is common knowledge that a defendant has a right to defend his or her self against the claim filed against them but in order to execute this right, the plaintiffs must make sure that the statement of claim was received by the defendants.
But what happens when the defendant is an importer living in the Palestinian Authorities and naturally, personally giving him these documents is a problem within itself?
Which are the cases that will convince the court that the plaintiff did everything in his power to pass the documents to the person being sued, and finds it justified to rule in favor of the plaintiff, even if it is not certain that the documents were lawfully given to the other side?
This issue was recently raised in the District Court of Tel Aviv.
The Facts of the Case and Claim of the Plaintiff:
The international clothes company Polo – Lauren (The Polo/ Lauren company L.P) filled a claim to the court against an importer living in the Palestinian Authorities, who imported to the territories of the Palestinian Authorities, through Israel, clothes which were suspected of violating the intellectual property rights of Polo – Lauren.
Polo Lauren claimed that all its attempts to transfer the Statement of Claim to the importer failed and that it tried to do so by using the services of the legal aid offices (in the Palestinian Authorities) and with the help of the customs agent involved in the import of the cloths that were suspected to be forged.
The company further added that it invested a lot of effort and financial expenses to send the documents of the claim to the importer in addition to translating it to Arabic.
The company claimed that for the past eight months the goods were being held by the Customs Authority and that the importer made no effort at all to release it, which shows that he is aware of the claim filed against him; hence he is giving up the goods. In light of this, the company requested the court to rule in its favor for lack of action from the defendant.
The Court’s decision:
The court accepted the claims of Polo – Lauren company and decided that the company did everything possible to pass the Statement of Claim to the importer.
The court mentioned that it was aware of the plaintiff’s great difficulty to pass the Statement of Claim to a defendant in the Palestinian Authorities.
The court stated that insisting on confirming the arrival of such documents, under all terms, would cause too much damage to the plaintiff.
The court put great emphasis on the fact that the importer (defendant) abandoned the goods for several months, without trying to release it, despite the great amount of money, invested in it.
Based on the importer’s conduct, the court ruled that it is highly probable that the importer was aware of the procedures being held against him and therefore is not trying to release his merchandise from Customs.
After these accounts, the court decided that under the circumstances, clear cut certainty on the matter of passing the documents to the importer wasn’t necessary, and in order to accept the claim against the importer as one in which no defense was offered, it was enough to assume that he knew about the court procedures being held against him.
In light of all the above, the court accepted Polo- Lauren’s request and handed down a verdict, even though no defense was given on behalf of the importer.
(C.F. (Civil File) District Tel Aviv24265-06-10 (The Polo/Lauren Company L.PVs. Basam Et Al. Decision Given on 27.1.11, Judge A. Nachnieli – Hayet. Names of the representatives of the parties were not mentioned).
Conclusion and Discussion:
From this case one can conclude that under certain circumstances, the courts tend to treat the importance of passing the Statement of Claim to the defendant, lightly.
However, this matter should not be taken lightly and the court will not easily accept the request for a verdict in the lack of defense in any situation.
This case demonstrates that it is the duty of the plaintiff to show that he has done all that was in his power to pass the Statement of Claim to the defendant, and make sure that they arrived, even if this step is impossible under circumstances.
In addition – it is possible to conclude that as a preliminary condition for a verdict, the court must be presented with evidence that show that the defendant was aware of the procedures taking place against him, such as presenting other factors - the importer- defendant’s conduct
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