Did your lawyer miss an appeal deadline, file late or skip the defence? When a missed deadline is malpractice, whether the case can be saved, and how to sue.
Conducting litigation is, to a large extent, the management of a calendar. The law sets a series of deadlines that allow no flexibility: a civil claim not concerning land is, as a rule, time-barred seven years from the day the cause of action arose (section 5(1) of the Limitation (Prescription) Law, 5718-1958); an appeal and an application for leave to appeal are filed within 60 days of service of the decision (Regulation 137(a) of the Civil Procedure Regulations, 5779-2018); a statement of defence is filed within 60 days of service of the statement of claim (Regulation 9(b)); and an application to set aside a judgment given in the absence of a party is filed within 30 days of its service (Regulation 131). Alongside these there are short deadlines for objections and appeals in administrative proceedings and in specialised tribunals, and in certain fields special, shorter limitation periods have been prescribed, and the warning about these must be especially sharp.
When such a deadline is missed, the result is usually binary. A claim filed late may be dismissed as time-barred without the court ever considering the arguments on their merits; an appeal not filed in time renders the judgment final; and in the absence of a statement of defence the court may give judgment on the basis of the statement of claim alone (Regulation 130). The client loses not only the chance of winning, but the very right to a day in court.
The case law distinguishes between the "quality of the handling" of a case — argument, strategy and the conduct of the evidence, in which the lawyer undertakes to make best efforts rather than to achieve a result — and the "handling itself", that is, performing the basic act of filing the document on time (CA 9022/08 Meguri-Cohen v. Kamar, Adv.). As to the latter, the duty comes close to an absolute one. For the same reason, missing the limitation period is regarded as the strongest category of negligence claims against lawyers: there is no reasonable alternative to filing a claim before the limitation period expires, and so there is no zone of discretion within which the failure could be justified.
The standard by which a lawyer's conduct is measured is that of the "reasonable lawyer": section 35 of the Civil Wrongs Ordinance [New Version] provides that a person who, in their occupation, failed to use the skill or to exercise the degree of care that a reasonable, prudent person qualified to act in that occupation would have used — was negligent. The lawyer's duty towards the client arises from the retainer contract, but it is also examined through the lens of tort law, and the client must prove a duty of care, its breach and damage caused as a result (CA 37/86 Levy v. Sherman). Alongside these stand the duties of loyalty and devotion under section 54 of the Bar Association Law, 5721-1961 and Rule 2 of the Bar Association Rules (Professional Ethics), 5746-1986, within which meeting deadlines and warning of limitation periods have been expressly recognised.
On the other hand, it must be said clearly: not every mistake is negligence. The law recognises that a lawyer has a zone of legitimate professional discretion, and it has long been established that an error of judgment does not amount to negligence (CA 735/75 Roitman, Adv. v. Aderet, Adv.). A reasoned decision not to appeal, taken with the client's knowledge and consent after the prospects and risks were explained, is judged by the information available to the lawyer at the time it was made and not with hindsight. But a missed deadline is the paradigmatic case in which discretion is of no help: an appeal that was abandoned, or a deadline that passed without the client's knowledge, is not "tactics", and the courts have treated it as negligence. Moreover, the lawyer must warn the client of the limitation date expressly, and a general warning is not enough — even where the client is the one dragging their feet (CA 8001/95 Koren v. Weisberg, Adv.); the warning should properly be given in writing, state the exact date and be delivered before the representation ends.
The client's conduct is also weighed. Where the client cut off contact, was late in delivering documents or concealed facts, the courts have at times attributed contributory fault to the client under section 68 of the Civil Wrongs Ordinance, but the principal responsibility has remained on the lawyer's shoulders. A lawyer who wishes to cease handling a matter must give notice without delay and do so in a manner that does not prejudice the client's interests (Rule 13(b) of the Ethics Rules), and non-payment of fees does not permit abandoning a file on the eve of a critical deadline. Finally, a clause in a fee agreement exempting the lawyer from liability for their own negligence is void, although limiting the scope of the representation itself is legitimate (CA 3699/11 Hassan v. Shaham, Adv.).
Before talking about a claim against the lawyer, the first and most urgent question is whether the original proceeding can still be rescued. In many cases the answer is not an absolute no, but it depends on how quickly one acts. An extension of a deadline fixed by the regulations or by statute requires "special reasons" (Regulation 176(b)), and the court considers, among other things, the reason for the delay, its length and the prospects of the proceeding. There is no certainty that the lawyer's default will in itself be regarded as a special reason, but the shorter the delay, and the sooner a reasoned application is filed, the better the client's position compared with someone who turns to the court months later.
Where a default judgment has been given, an application to set it aside may be filed within 30 days of its service (Regulation 131); the court examines the reason for the default and the prospects of the defence, and may set the judgment aside on such terms as it sees fit. It is important to know that once such an application has been filed, the time for appeal runs from service of the decision on the application to set aside (Regulation 137(c)). We have discussed this at greater length in our article on setting aside default judgments.
Even where it is argued that the claim became time-barred because of the lawyer, it is worth examining carefully whether the clock has really run out. Section 8 of the Limitation Law provides that where the facts constituting the cause of action were unknown to the plaintiff for reasons beyond their control, which with reasonable care they could not have prevented, the period begins to run only on the day those facts became known; section 15 provides that the time during which a claim that was dismissed was pending, where it may be refiled, is not counted; and section 15A, added by an amendment in 2024, provides that the period from 7 October 2023 to 6 April 2024 is not counted in respect of limitation periods that had not yet expired. Acting quickly matters twice over: it may save the case, and even if it does not, it shows that the client acted to mitigate their loss — an argument the lawyer and the lawyer's insurer will almost always raise in the claim that follows.
The central difficulty in a claim against a lawyer for a late filing is not proving negligence — that is usually clear from the documents — but proving causation and loss. The client must show not only that the deadline was missed, but what would have happened had it not been missed. For this purpose the case law developed the mechanism known as the "trial within a trial": the court hearing the negligence claim reconstructs the original proceeding and decides, on the basis of the evidence that was available, whether the claim or the appeal would have succeeded. The leading authority holds that the plaintiff must show that their prospects in the original proceeding exceeded 50%, and also that a judgment in their favour could actually have been collected from the original defendant (CA 989/03 A. Hatar-Yishai, Law Office v. Hinanzon). A good claim against an insolvent defendant is worth little, and the negligence claim will value its loss accordingly.
Where the original proceeding was never heard — as in the case of a time-barred claim or an appeal that was never filed — there is no earlier judgment to rely on, and the court decides the question from scratch (CA 9022/08 Meguri-Cohen v. Kamar, Adv.). This is a genuine evidentiary challenge, and sometimes it is precisely the lawyer's default that has impaired the ability to prove the original case, for example where evidence has been lost or witnesses are no longer available because of the passage of time. In such situations the argument of "evidentiary damage" is sometimes raised, seeking to shift the burden to the party who caused the evidentiary gap; the doctrine developed mainly in the field of medical malpractice, and its application to lawyers is done with caution and is not self-evident.
And what if the prospects of the original proceeding were reasonable but not certain? The courts have recognised, in appropriate cases, compensation for loss of chance, but the primary route is proving the prospects of the original proceeding (the "trial within a trial"), and this head of damage has been applied to lawyers sparingly. For that reason, preserving evidence is critical from day one: gather all correspondence with the lawyer, the fee agreement, the documents and evidence of the original case, the court's decisions and the certificates of service, and document the date on which the default was discovered and the steps taken immediately afterwards.
The central head of damage is the pecuniary loss: the sum the client would have recovered in the claim that became time-barred, the sum awarded against the client in a default judgment that could not be set aside, or the difference that would have been achieved on appeal — less the costs and fees that would have been required in any event, and taking into account the prospects of collection. Alongside it, the case law has recognised non-pecuniary loss as a free-standing head of damage: the client's distress, frustration and loss of their "day in court", which may be awarded even where no causal connection to the pecuniary loss has been proved (CA 243/83 Jerusalem Municipality v. Gordon; CA 153/04 Rubinowitz v. Rosenboim, Adv.).
As for the fees paid: where full tortious compensation is awarded, the fees will not be awarded in addition, so as to avoid double recovery; but where the lawyer did not perform at all what they were retained to do, the client has a contractual cause of action for restitution. We have dealt with disputes over the fees themselves in a separate article. It should be remembered that most lawyers in Israel are covered by professional liability insurance, among other things under arrangements of the Israel Bar Association; the policies are claims-made policies, and so the timing of the approach to the lawyer and of the notification to the insurer matters. The Insurance Contract Law, 5741-1981 allows the injured party, on the conditions set out in it, to turn directly to the insurer (sections 65, 68 and 69), subject to the defences available to the insurer; in many cases the dialogue with the insurer is the practical arena in which the dispute is resolved.
The disciplinary route is an additional route, not an alternative one. A complaint may be filed with the Israel Bar Association Ethics Committee, which acts as prosecutor under section 63 of the Bar Association Law and may bring a disciplinary complaint before the district disciplinary tribunal. The tribunal may impose disciplinary measures and may even order the lawyer to pay the complainant compensation of up to NIS 25,000 (section 69(a)(4)), and such compensation does not exempt the lawyer from liability under any other law; however, the disciplinary proceeding is not a substitute for a civil claim and is not designed to compensate the client for their full loss. Finally, a claim against the lawyer also has a deadline: as a rule, a claim against the lawyer becomes time-barred after seven years; when the clock starts to run depends on the circumstances, and in cases of late discovery it may be postponed — but there is an absolute ceiling in tort. A person harmed by a missed deadline cannot afford to miss this deadline too.
Our handling of cases of a lawyer's negligence in missing a deadline begins with a swift, two-track review. First, we examine whether the original proceeding can still be saved: an application to extend the deadline for special reasons, an application to set aside a default judgment, or an examination of arguments that postpone the start of the limitation period or suspend it. In parallel, we make sure to obtain the complete client file from the previous lawyer — the client is entitled to their documents — and we document the chronology of events, since it will serve both in the urgent applications and in the claim that follows.
In the second stage, we assess the case as the court would assess it in a "trial within a trial": the prospects of the original proceeding, the ability to collect from the original defendant, the amount of the loss and the additional heads of damage. In appropriate cases we draw on an expert opinion, and we approach the lawyer's professional liability insurer in an attempt to reach a settlement. If no settlement is reached, we conduct the claim in court, and in parallel we consider together with the client whether there is merit in a complaint to the Ethics Committee.
Please note that everything stated in this article is general information only, does not constitute legal advice and is not a substitute for it. Nothing in it guarantees any outcome, and each case is examined on its own facts according to its circumstances. If you believe you have been harmed by a deadline missed by your lawyer, you are welcome to contact us to have your case reviewed.
As a rule, yes. The time for appeal is 60 days from service of the judgment (Regulation 137(a)), and missing it without your knowledge and consent is regarded by the courts as negligence, as distinct from a reasoned decision not to appeal that was taken together with you after the prospects were explained to you. That said, to recover compensation you will have to prove that the appeal would most likely have succeeded and what it would have been worth to you, so it is important to act quickly and keep all the documents.
As a rule, a claim against the lawyer becomes time-barred after seven years; when the clock starts to run depends on the circumstances, and in cases of late discovery it may be postponed — but there is an absolute ceiling in tort. Since lawyers' professional liability policies are claims-made policies, and since evidence and witnesses erode over time, there is no reason to wait: it is advisable to have the case reviewed and to write to the lawyer as soon as possible.
The primary route is to prove, in a "trial within a trial", that the prospects of the original proceeding exceeded 50% and that the judgment could have been collected. The courts have recognised, in appropriate cases, compensation for loss of chance, but it has been applied to lawyers sparingly. Even where pecuniary loss cannot be proved, the case law has recognised separate compensation for distress and for the client's loss of their day in court.
No. A complaint may be filed with the Israel Bar Association Ethics Committee; the disciplinary proceeding is not a substitute for a civil claim and is not designed to compensate the client, although the disciplinary tribunal is authorised to award limited compensation, of up to NIS 25,000, which does not exempt the lawyer from civil liability. Compensation for the full loss — the claim that became time-barred, the judgment given against you or the appeal that was lost — can be claimed only in the civil court.
First, check whether the proceeding can still be saved: an application to set aside a default judgment is filed within 30 days, and an extension of any other deadline requires special reasons and is considered according to the reason for the delay, its length and the prospects of the proceeding. Second, demand the complete file from the lawyer in writing and keep all correspondence. Third, document the date of discovery. Acting quickly improves the chances of rescue and also forecloses the argument that you failed to mitigate your loss.