TY - CHAP
T1 - It’s for the Judges to Decide
T2 - Allocation of Trial Costs in Israel Report on Israel
AU - Fisher, Talia
AU - Rosen-Zvi, Issi
N1 - Publisher Copyright:
© 2012, Springer Science+Business Media B.V.
PY - 2012
Y1 - 2012
N2 - The Israeli law governing cost and fee allocation diverges greatly from almost all other legal systems in the Western world (with the exception of South Africa) in that cost allocation is left entirely in the discretion of the court. Although in practice judges usually follow the “loser pays rule”, (Uri Goren, Civil Procedure Issues (Tenth Edition, 2009) 744.) this is not mandated by law and judges can, and sometime do, diverge from it, ordering the winning party to pay the losing party’s litigation costs. In terms of the amounts awarded, some rhetorical transformation has taken place. Historically, courts tended to disregard the actual amounts expended by winning parties on the litigation when awarding costs, leading to their substantial under-compensation. In recent years, following the “constitutional revolution” which also constitutionalized civil procedure, those both within and outside of the judicial system have increasingly argued that litigation costs should be more in line with actual costs. But the extent to which the rhetorical transformation will infiltrate actual reality remains to be seen. In what follows we provide some information and insights concerning the rules and decisions regulating the allocation of trial costs and reflect on their impact on access to justice as well as on the behavior of the parties to the litigation.
AB - The Israeli law governing cost and fee allocation diverges greatly from almost all other legal systems in the Western world (with the exception of South Africa) in that cost allocation is left entirely in the discretion of the court. Although in practice judges usually follow the “loser pays rule”, (Uri Goren, Civil Procedure Issues (Tenth Edition, 2009) 744.) this is not mandated by law and judges can, and sometime do, diverge from it, ordering the winning party to pay the losing party’s litigation costs. In terms of the amounts awarded, some rhetorical transformation has taken place. Historically, courts tended to disregard the actual amounts expended by winning parties on the litigation when awarding costs, leading to their substantial under-compensation. In recent years, following the “constitutional revolution” which also constitutionalized civil procedure, those both within and outside of the judicial system have increasingly argued that litigation costs should be more in line with actual costs. But the extent to which the rhetorical transformation will infiltrate actual reality remains to be seen. In what follows we provide some information and insights concerning the rules and decisions regulating the allocation of trial costs and reflect on their impact on access to justice as well as on the behavior of the parties to the litigation.
KW - Actual Cost
KW - Civil Case
KW - Civil Procedure
KW - Expert Testimony
KW - Legal Service
UR - http://www.scopus.com/inward/record.url?scp=85145695654&partnerID=8YFLogxK
U2 - 10.1007/978-94-007-2263-7_14
DO - 10.1007/978-94-007-2263-7_14
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SN - 9789400722620
SN - 940072263X
SN - 9789400722637
SN - 9400722621
T3 - Ius Gentium - Comparative Perspectives on Law and Justice
SP - 177
EP - 184
BT - Cost and fee allocation in civil procedure
A2 - Reimann, Mathias
PB - Springer Science and Business Media B.V.
CY - Dordrecht
ER -