An article on delays in the courts

“And I will restore your judges as at the first…” (Isaiah 1:26)

Recently, the Ministry of Justice and the Courts Administration have been working to introduce changes and improvements intended to make court proceedings more efficient and faster. These efforts require substantial funding, and the pace of improvement is dictated by the availability of resources. Yet another factor could improve proceedings without any financial expenditure: the human element and its attitude toward time.

Time limits for legal acts and obligations are extensively addressed in legislation. Alongside specific deadlines in the Companies Ordinance, Bankruptcy Ordinance and civil and criminal procedural rules, section 41 of the Contracts Law provides generally that an obligation must be performed within a reasonable time. What is reasonable depends on the circumstances, and courts have defined it differently in different cases. Yet no reasonable period has been fixed for delivering a judgment, although regulation 190(d) of the Civil Procedure Regulations, 5744–1984, hints at the legislator’s view.

Lawyers routinely encounter deadlines for defenses, disclosure requests, responses to written applications, appeals and other procedural steps. Judges differ in how they treat them. A strict approach would be understandable if courts applied the same standard to their own conduct.

I cannot but praise and respect the Supreme Court justice who, realizing she could not enter the courtroom at the appointed time, sent a trainee to apologize on her behalf. Contrast the judge in another court who summons everyone for 8:30 a.m. but arrives at chambers after 9:30. Can someone who values only their own time, not that of others, also safeguard litigants’ money?

The heavy burden on courts and judges causes delays in scheduling trials, but it cannot justify delay in writing judgments. Justice Haim Cohn addressed this in Civil Appeal 803/75, Minroff v. Moshe and Esther Kleinmintz et al., PD 30(3) 179, at 188:

“…These explanations concern judicial work faithfully performed, not judicial work performed faithlessly. What is faithful judging? Deciding the case shortly after hearing the evidence, when the judge can faithfully recount the impressions received. And what is faithless judging? Prolonging justice and the parties’ ordeal by withholding judgment beyond the time limit prescribed in the regulations, an unreasonable delay; …”

More than twenty years ago, Professor Shimon Shetreet asked, “Who should bear the cost of delays and failures in judicial proceedings?” in an article bearing that title published in “Mishpatim,” volume 6, page 584. The question remains unanswered, although we all know that only litigants pay the price. Has the time not come for the courts and the State to bear that cost?

Here are two examples of the heavy price litigants pay when a judge delays a judgment or decision.

In the first, eviction was sought against someone who had built on another person’s plot. An expert valued the building, establishing the amount the landowner would have to pay the builder. Closing submissions were filed, and about forty months passed without judgment. The valuation may no longer be current, the parties have grown older, and no one knows when their ordeal will end.

The second concerned two people who jointly owned two vehicles. When they parted ways, each retained one vehicle. One died. The survivor wished to sell and found a buyer, although the deceased plainly had not signed the transfer. The deceased’s widow, acting lawfully, took the other vehicle out of use when its license expired and could not be renewed without the registered owners’ consent. She applied for dissolution of co-ownership and appointment of a receiver to sell it. Ten months passed without a decision, and the parked vehicle became a worthless wreck.

In his article twenty years earlier, Professor Shetreet proposed that unjustified delay in delivering judgment contrary to statutory requirements should justify disciplinary action against the judge, including removal from office if delaying judgments is habitual. To my knowledge, nothing has been done in that direction.

I wonder: can judges who withhold judgments and harm litigants begin judging each morning with a clear conscience? Are they not troubled? Can the justice system remain idle while judges “cause serious injustice to parties waiting for their cases to end and damage the image of judges and the justice they administer,” as Justice Berinson said in Civil Appeal Goldberg v. Balga, PD 26(1) 456, 462?

Judges who delay judgments undermine the foundations of law and order in the State, in Justice Berinson’s words there, and create the possibility of unintended injustice or a miscarriage of justice to one party, as he stated in Civil Appeal 322/74, Kamal Gibor v. Fawaz Hassan Saad , PD 29(1) 223, 224. The public begins to feel that there is no longer any point in bringing claims before a court, in the words of Isaiah 5:7:

“He looked for justice, but behold, bloodshed”

Under the present system, litigants who miss statutory deadlines bear the consequences, yet they also bear the harm caused by courts’ delays in delivering judgments.

 

The national poet, H. N. Bialik, wrote:

“And if there is justice — let it appear at once!

But if, after I am destroyed beneath the heavens,

justice appears,

let its throne be cast down forever!”

A judicial appointment should be understood as the State entrusting the work of judging to someone for safekeeping. Delaying judgments breaches that trust, and a judge who does so is no longer entitled to hold it. Such a judge should remove the robe, return the trust and retire, making way for someone better_; perhaps then the prophet’s words will be fulfilled among us:

“I will restore your judges as at the first, and your counselors as at the beginning. Afterward you shall be called the city of righteousness, the faithful city. Zion shall be redeemed through justice, and those who return to her through righteousness” (Isaiah 1:26–27).

Eliyahu Shiloh, Attorney at Law