Background
Move Design, an Israeli company, bought three printing machines and related equipment from Belgian company Gandy Digital. After Move Design encountered financial difficulties, the companies agreed that the machines would be sent to Gandy Digital, which would seek buyers and remit the proceeds after deducting a 10% commission. Move Design later sued Gandy Digital and its CEO, Shmuel Lagziel, in the Jerusalem Magistrates’ Court, alleging that it had received no payment and seeking NIS 935,560 plus linkage and interest.
The defendants sought to call four current or former Gandy Digital employees living abroad, who allegedly participated in dealings with Move Design and efforts to market and sell the machines. The Magistrates’ Court permitted the witnesses to be called but refused to let them testify by videoconference, stating that the requirements of Civil Procedure Regulation 72 had not been established and that remote testimony would burden cross-examination. The Jerusalem District Court denied leave to appeal, reasoning principally that section 1(6) of the Courts Order (Types of Decisions for Which Leave to Appeal Will Not Be Granted), 2009, permits interlocutory review of a decision allowing remote testimony but not one refusing it.
The Court’s Holding
In a unanimous opinion by Justice Yechiel Kasher, the Supreme Court granted leave to appeal, treated the application as an appeal, and allowed it. The Court held that section 1(6)’s exception for decisions concerning testimony outside the courtroom, including by videoconference, is bidirectional: it permits an application for leave to appeal both a decision granting remote testimony and a decision denying it. The provision’s language, legislative history, and purpose did not support limiting review to orders granting such requests.
The Court explained that denying remote testimony can be especially consequential when it effectively prevents material evidence from being heard and may be difficult to remedy after final judgment. On the merits, it found this an appropriate case for videoconference testimony: the dispute had substantial foreign connections; the witnesses had direct knowledge of the overseas marketing and sales efforts central to the defense; most were former employees outside Gandy Digital’s control; and they said they would not travel to Israel, citing personal circumstances, the security situation, and a Belgian travel warning, but were willing to testify remotely.
The Court therefore ordered that the four foreign witnesses be permitted to testify by videoconference, subject to any further directions imposed by the Magistrates’ Court. It vacated the NIS 1,000 costs award payable to the state and ordered Move Design to pay the appellants NIS 10,000 in costs.
Key Takeaways
- Section 1(6) does not bar applications for leave to appeal orders denying testimony by videoconference; its exception covers both grants and denials.
- Although trial courts retain broad discretion over evidence, inadequate reasoning and the practical loss of important testimony can justify appellate intervention.
- For disputes with substantial international connections, courts should account for the foreign party’s practical difficulty in bringing overseas witnesses to Israel while still requiring compliance with Regulation 72.
Why It Matters
The ruling resolves conflicting lower-court approaches to interlocutory review of videoconference decisions and confirms that a refusal may be challenged before final judgment. The Court emphasized that an erroneous refusal can create greater and less reparable harm than an erroneous grant because the witness’s evidence may never enter the record.
The decision also reflects the judiciary’s increasingly receptive approach to remote testimony where modern technology, international litigation, security concerns, and the importance of the evidence make it appropriate, without displacing Regulation 72’s safeguards.