The tragic case of Hen Efrat who died after digesting nuts during a visit to the “La Gufra” coffee shop in Tel Aviv led to a significant decision relating to how an Anton Piller type order can be used under the Israeli Rules of Civil Procedure. The Magistrate Court in Tel Aviv cancelled the “Anton Piller” Order providing three cumulative conditions for obtaining such an order and suggesting an “Anton Piller” order is not suitable for Tort related cases.
On November 27, 2011 the Magistrate Court in Tel-Aviv issued its decision in Efrat v. cafe “La Gufra” regarding a motion to cancel an “Anton Piller” search and seizure order that was granted before a lawsuit was filed.
The court in its ruling described in a very comprehensive manner the background behind the “Anton Piller” order and how it was integrated into the Israeli law in Rule 387 A. to the Rules of Civil Procedure. The court provided how and when such an order can be used and issued – basically stating that a balance between the rights of the parties must be performed when an “Anton Piller” order is sought.
The court accepted the motion for cancellation of the “Anton Piller” order and decided that it was not proven at the required level of “near certainty” that there was a real concern regarding the defendant’s intention to discard or destroy evidence. The court stated that such concern (that a defendant will discard or destroy evidence) cannot be attributed to persons who did not commit a criminal offense and the sole cause of action ascribed against such a defendant was negligence. The Court added that as a rule, it is not possible to use the “Anton Piller” warrant while filing a lawsuit based on the “Torts Ordinance” especially when negligence is to be considered. This specific part of the decision departs significantly from previous rulings and it remains to be seen if it can stand review of an appellate court.
Background: The Plaintiffs are the parents of Hen Efrat, a young woman who passed away as a result of a severe allergic reaction to nuts she consumed at the Defendant’s coffee shop in Tel Aviv. The plaintiffs argued, that the Defendants’ server clearly said that the dessert was without nut ingredients after the deceased inquired about the content. It turned out that the dish contained a chocolate spread based on walnuts.
The Plaintiffs filed a motion seeking an “Anton Piller” order to seize the Defendants’ computer hardware, including the existing security camera films taken in the cafe shop, as well as, staff names who were on shift when the deceased consumed the fatal nuts and all documentation relating to supply orders on the relevant dates. the order was granted ex parte.
The Defendants filed a motion to cancel the order. The Defendants argued that the order granted was unlawful for failing to meet the legal standards for an “Anton Piller” order. Furthermore, the Defendants argued that the “Assets Collector” appointed by the court exceeded his authority when he conveyed the assets to a third party, by doing so he violated his duty of confidentiality. Nevertheless, no proof was shown to indicate a basis for real concern that those assets will be discarded or destroyed.
The court accepted the motion and cancelled the “Anton Piller” order.
The court stated that Rule 387A requires three cumulative conditions for receiving an “Anton Piller” search and seizure order:
First condition, the request must be accompanied by reliable evidence to prove the cause of action and credible evidence showing that the assets are “needed evidence” to prove the claim, and that such needed evidence was was with the party against whom the order is requested.
Second condition, it must be shown at a level of near certainty that there is a real apprehension that the evidence in the possession of the defendant would discarded, and that there is a connection between the assets being caught to the success of the lawsuit claim must be proven.
Third condition, the applicant must establish evidence suggesting that concealment of assets which might occur, would imply a heavy burden on the process, not only causing difficulties in proving the Plaintiff’s case, but also lead to its failure.
The Court concluded that in accordance with Rule 387A the plaintiffs failed to base their motion on reliable evidence to prove the cause of action, that the Plaintiff also failed to show at the required level of “near certainty” an existence of real concern in that the defendant will discard or destroy the evidence requested. In addition, the court stated that the Plaintiff failed to prove a causal connection between the concealment of assets and a heavy burden on the procedure or its chances to fail.