Yehoshua Fishler is suing G.A. Ehrlich LTD (Ehrlich & Fenster) in the Tel Aviv – Jaffa District Court.
He requested that Judge M Amit Anisman withdraw from the case.
The case concerns allegations and counter allegations of breach of contract concerning G.A. Ehrlich (1995) ltd obligating themselves to register Fishler’s patent in various jurisdictions. In his Statement of Case, the complainant alleges that the defendant did not timely pay issue fees and as a result the case was not registered.
In a pre-trial hearing held on 7 February 2018, the parties stated their cases and Judge Judge M Amit Anisman asked various questions and then ruled that “after the court explained to the complainant the likelihood and risks of the case and the difficulty in managing it, the complainant will have 14 days to reconsider the case and if they decide to continue, the defendant will be allowed to request that the complainant deposit a bond to cover defendant’s costs should the defendant prevail.”
Fischler informed the court that he intended continuing with the case and so J A Ehrlich (1995) ltd (henceforth Ehrlich) requested that Fischler be obliged to deposit a bond to cover costs should he lose. The court acquiesced to this request, ruling that such a bond was appropriate in this instance, inter alia because of the chances of the complainant prevailing. Regarding this, the judge stated that “I am doubtful if the case can be considered as ‘a complete waste of time’. Nevertheless, one cannot be blind to the chances of the complainant prevailing that were shown by the defendant (requesting the bond) in light of the fact that the plaintiff is not relying on a point of law that obliges the agent acting as a service provider, to pay fees on behalf of the client.” Following this, Fischler appealed to the Supreme Court to have the Judge removed from hearing the case due to having adverse preconceptions as evidenced from the decisions of 7 February 2018 and 23 May 2018.
On 18 July 2018, the judge presiding over the Court of First Instance refused the request for her to recluse herself. The court argued that their referring the Complainant’s attention to issues that adversely affected their chances of prevailing, does not provide grounds to a real claim that the court had interests or that the judge should recluse herself. The Court had not reached a conclusion regarding the substance of the case, and the statements have to be understood in the context of the early stage then reached. The complainant’s allegation that the court invited the defendant to request that the complainant post a bond is incompatible with the sequence of events, since the defendant made it clear at the pre-trial hearing, that they intended making such a request. The court emphasized that the fact that the defendant was given an opportunity to request the deposition of a bond does not indicate that the court has reached any conclusion regarding the outcome of the trial, nor does it imply an assessment of the complainant or a ‘threat’ in any shape or form. This is true regarding the 23 May 2018 ruling. The court explained that requiring the complainant to post a bond does not imply that the court had closed its mind. The additional claims of the complainant were a kind of appeal, and were improper in a request for a judge to recluse herself.
This resulted in an Appeal to the Supreme Court, which was heard by Chief Judge Judge Hayot. In a hearing before Judge Hayot, the Complainant reiterated his allegations that the pretrial hearings demonstrated that the judge had already made up her mind. He reiterated his statement that the Court had invited the defendant to request a bond be set and that this was an “implied threat”. Fischler claimed that the decision to require a bond itself testified to the Court of First Instance having already made up its mind.
After considering the Statement of Appeal and its appendices, Judge Hayot ruled that it should be rejected. The protocol of the pre-trial hearing has nothing that provides a real indication that the Judge had a conflict or had made up his mind, and this is true of the interim ruling regarding deposition of a bond. The District Court did not ‘invite’ the defendant to request that a bond be placed. The defendant themselves announced that they would make such a request. Similarly, and without going into the issues themselves, the mere fact that the court indicated problems with the charges brought is not a reason for the court to disbar itself. The contrary is true. An effective management of the case is likely to result in the presiding judge expressing an opinion – tentatively and with care, regarding the contended issues, and there is no reason for the court to refrain from pointing out the weaknesses in the case of one of the parties, and even to suggest that a plaintiff consider withdrawing the case (Appeal 8893/17 Nasrallah vs. Aladin, paragraph 5 (22 November 2017).
Chief Judge Hayot considers that the court has acted in an analogous manner in the current case by allowing the defendant to require that the complainant posts a bond should they decide to continue with the case. Finally, after reviewing the plaintiff’s allegations regarding the posting of the bond, it appears that they relate to the matters under dispute and it is not superfluous to note that when considering whether or not it is appropriate to require a party to post a bond, the courts should consider the likelihood of the parties prevailing. Consequently, requests for a judge to recluse herself and appeals regarding these decisions are not the correct forums to raise these issues, and the correct way to appeal is via a formal appeal (see Appeal 2004/18 Plonit vs. Plonit, paragraph 4 (18 July 2018).
The Appeal is rejected. Since no response was required, no cost ruling is made.
Interim Ruling on Appeal by Judge Hayot in Appeal 5685/18 Fischler vs. G.A. Ehrlich (1995) ltd, 12 August 2018.
Whether or not a judge has preconceptions, unsuccessfully requesting her to recluse herself and then unsuccessfully appealing to the Supreme Court that the judge be considered unfit to hear the case is unlikely to enamour the plaintiff with the judge in question.