Background
Yitzhak and Liora Oren sued two applicants—an individual who owned the relevant land and a family construction company that developed and marketed homes on it—over an alleged oral agreement to sell them a detached house. The Orens alleged that no written contract was signed for tax-related reasons and that the applicants later withdrew because they wanted to sell the property at a higher price. They sought enforcement of the alleged agreement and damages.
After filing written testimony, the applicants asked the Central District Court to permit the individual applicant and her son to be cross-examined by videoconference from the United States. The District Court allowed the son to testify remotely but refused the individual applicant’s request. It found that she had left Israel shortly before her scheduled testimony despite knowing about the proceeding, that her medical letters did not adequately explain why she could fly to the United States but could not return weeks later, and that she had not shown that travel to Israel would be exceptionally difficult. She sought leave to appeal only the ruling concerning her own testimony.
The Court’s Holding
Justice Ruth Ronnen denied leave to appeal without requesting a response from the Orens. Decisions about testimony by videoconference are procedural matters at the core of the trial court’s discretion, and appellate intervention is reserved for exceptional cases. This was not such a case. The District Court reasonably concluded that the applicant had not established, with sufficient detail and evidentiary weight, the requirement under Regulation 72(a) of the Civil Procedure Regulations that coming to Israel would be “very difficult” for her.
The Supreme Court also declined to disturb the findings that the request was delayed and not made in good faith. Because the applicant left Israel shortly before she was due to testify without notifying the court or the opposing parties that she did not intend to return for the hearing, she presented them with a fait accompli and prevented consideration of alternatives such as early testimony. Independently, Regulation 72(a) permits remote testimony only when the evidence is essential to the disputed issues. The applicants themselves characterized her evidence as marginal and nonessential. They therefore had to choose between bringing her to Israel to testify in person and foregoing testimony that they maintained carried little weight.
Key Takeaways
- Permission to testify remotely under Regulation 72(a) requires satisfaction of cumulative conditions, including that travel would be very difficult and that the testimony is essential to the disputed issues.
- Medical evidence must adequately address the witness’s actual travel history and explain why a recent international flight was possible but a return flight for testimony is not.
- A party who leaves Israel shortly before scheduled testimony without timely alerting the court may be found to have delayed and acted without the required good faith.
Why It Matters
The decision emphasizes that videoconference testimony remains an exception to the ordinary rule of in-person testimony. It also explains that the current regulations impose a stricter materiality threshold than the former requirement that proposed testimony merely be relevant: remote testimony must be essential.
That essentiality requirement can defeat a request even when the witness’s limited role might appear to reduce any prejudice from remote examination. If the evidence is not essential, the proponent must ordinarily either arrange in-person testimony or proceed without it.