Civil law – Prosecute Bush Cheney http://prosecutebushcheney.org/ Tue, 14 Jun 2022 03:56:37 +0000 en-US hourly 1 https://wordpress.org/?v=5.9.3 https://prosecutebushcheney.org/wp-content/uploads/2021/08/cropped-icon-32x32.png Civil law – Prosecute Bush Cheney http://prosecutebushcheney.org/ 32 32 Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 – Admissibility of Commercial Documents in Civil Proceedings https://prosecutebushcheney.org/civil-law-and-criminal-law-miscellaneous-provisions-act-2020-admissibility-of-commercial-documents-in-civil-proceedings/ Tue, 14 Jun 2022 03:56:37 +0000 https://prosecutebushcheney.org/civil-law-and-criminal-law-miscellaneous-provisions-act-2020-admissibility-of-commercial-documents-in-civil-proceedings/ The recently enacted Civil and Criminal Law (Miscellaneous Provisions) Act 2020 (the “Act”) has introduced welcome assistance for financial institutions seeking to prove their debts in court. While the overriding objective of the law was to introduce civil and criminal court reform in response to the difficulties caused by the COVID-19 pandemic, certain provisions of […]]]>

The recently enacted Civil and Criminal Law (Miscellaneous Provisions) Act 2020 (the “Act”) has introduced welcome assistance for financial institutions seeking to prove their debts in court.

While the overriding objective of the law was to introduce civil and criminal court reform in response to the difficulties caused by the COVID-19 pandemic, certain provisions of the law deal with pre-existing non-Covid related issues that also required a reform. One such issue addressed by the law is the law of evidence in civil proceedings, in particular the “hearsay rule” regarding the admissibility of commercial documents.

Hearsay rule

To date, when a document is produced in court, oral evidence is required to authenticate the origin and content of that document, failing which the document would be ruled inadmissible as hearsay evidence (the “Rule hearsay”).

The inadmissibility of commercial documents in civil proceedings has been discussed in a previous article where the Court of Appeal ruled in Promontoria (Aran) Limited v Burns [2020] IECA87 that the affidavit evidence given by a person who was not involved in the original loan transaction was inadmissible hearsay. In this case, the Court of Appeal held that the affidavit evidence only confirmed what the plaintiff had told the original lender about the amount owed by the borrower at the time of acquiring the loan and the amount that s had accumulated since. , which amounted to “classic hearsay”.

In its decision, the Court of Appeal requested that an exception to the rule against hearsay in business documents be introduced in civil matters. The Law Reform Commission had previously recommended such an exception in its 2016 report Consolidating and Reforming Aspects of the Law of Evidence.

Exception to the hearsay rule

Chapter 3 of the Act, which came into force on August 21, 2020, introduced a significant change in the law of evidence in civil proceedings by creating a statutory exception to the hearsay rule with respect to admissibility of commercial documents.

Article 13 of the law provides that “any recording in the form of a document established within the framework of cases is presumed to be admissible as proof of the veracity of the facts alleged in this document” (the “Statutory exception”).

This statutory exception creates a presumption that information contained in “business records” is evidence of fact without the person concerned being required to testify or be cross-examined. Although the presumption may be challenged, the burden of proof is on the disputing party to prove that the evidence contained in the business documents is inaccurate or incorrect.

Under section 14 of the Act, to benefit from the statutory exception, the document must be a “commercial document” and must have been:

  • compiled in the ordinary course of business;
  • provided by a person (whether or not compiled and identifiable) who had, or can reasonably be expected to have had, personal knowledge of the matters discussed; and
  • in the case of information in illegible form which has been reproduced in a permanently readable form, has been reproduced within the normal operation of the reproduction system concerned.

The statutory exception does not apply in certain circumstances to include where:

  • the information is protected from disclosure in civil proceedings;
  • the information is provided by a person who would not be compellable to testify at the request of the party wishing to produce the information in evidence; Where
  • information compiled for the purpose of or in anticipation of any criminal investigation, inquiry or investigation under law or disciplinary proceedings. Under Section 14(7) of the Act, records of a business that has ceased to exist are admissible.

In order to benefit from the legal exception, the party requesting admission is required to provide the other party with a notice of intention to submit the relevant document in evidence, together with a copy of the document, no later than 21 days before the start of the civil trial. Any objection to the admissibility of the document must be served no later than 7 days before the start of the trial.

In determining the weight to be given to the information admitted under the statutory exception, the Court must take into account all the circumstances from which an inference can reasonably be drawn as to its accuracy or otherwise. The Court must also determine whether the admission or exclusion of said records would likely result in injustice to any other party to the proceedings. In addition, the Court may hear evidence as to the credibility of the provider of information contained in business documents.

Although the above criteria must be met, the Court retains overriding discretion as to the admissibility of evidence under the statutory exception. The Court will not admit a document under the new provisions when it is of the opinion that its admission would not be in the interests of justice.

Consequences

The introduction of the statutory exception will be of great help for financial institutions in respecting the thresholds of proof required to prove their debts in court. However, third-party funds that have acquired loan books from financial institutions may still face challenges in overcoming evidentiary thresholds unless full account statements for each account are obtained when purchasing loan books from financial institutions that can be produced as evidence in court. See previous article: The Supreme Court specifies the information required before the judgment is rendered in summary proceedings.

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Knesset debate over civil law in Israel threatens settler protections https://prosecutebushcheney.org/knesset-debate-over-civil-law-in-israel-threatens-settler-protections/ Sun, 12 Jun 2022 06:04:40 +0000 https://prosecutebushcheney.org/knesset-debate-over-civil-law-in-israel-threatens-settler-protections/ Placeholder while loading article actions HEBRON, West Bank — Noam Arnon and Issa Amro live a few blocks from each other in the center of this biblical city, but they live under two different sets of laws. Amro, along with the other 200,000 Palestinian residents of Hebron, is subject to military law imposed by the […]]]>
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HEBRON, West Bank — Noam Arnon and Issa Amro live a few blocks from each other in the center of this biblical city, but they live under two different sets of laws. Amro, along with the other 200,000 Palestinian residents of Hebron, is subject to military law imposed by the Israeli occupying forces. Soldiers can, and have, entered his home and strip-searched him in the streets without a warrant or warning.

Arnon and the other 800 residents of an Israeli settlement in the old city of Hebron live under Israeli civil law, enjoying the same protections against warrantless searches, arrest of minors and other police powers as their compatriots. living in Israel. “Israeli law must apply here,” said Arnon, who believes Jews have a biblical and historical claim to these ancient lands. “Hebron is more Israeli than Tel Aviv.

But the decades-old system in which Israel extends its legal code to its citizens settling in the Palestinian territories is suddenly in jeopardy. Jerusalem lawmakers are deadlocked over renewing the arrangement in a schism that could dissolve the unusual two-tier legal system and subject West Bank Israelis to the same martial law as their Palestinian neighbors.

It’s a dispute that threatens to topple the country’s year-old government.

Ahead of Biden’s visit, Israel launches largest expulsion of Palestinians in decades

Politicians have until the end of the month to reconcile differences that have divided members of the diverse governing coalition, which includes right-wing, left-wing and Palestinian Israeli parties. The measure failed in a first attempt at renewal this month after several coalition members voted against the measure or abstained.

Members of opposition leader Benjamin Netanyahu’s right-wing Likud party enthusiastically support the extension of civil law, but voted against it in hopes of bringing down the fragile ruling coalition.

Recent defections have reduced the ruling coalition’s voting power to just 60 seats in a 120-seat parliament, and political observers have said the deadlock over civil rights may well be the blow that will collapse the government.

“We will probably have another election,” Tal Schneider, a veteran political reporter with The Times of Israel, said in remarks to The Jerusalem Press Club. “There’s a big divide here, and it didn’t go away just because we had a government that was very inclusive and very different from previous governments.”

The unusually diverse coalition, which formed last year after four inconclusive elections and two years of political stalemate, was a rare experiment in political pluralism in Israel, where ideological divisions are stark. The common motivation of most members was to break the decades-long grip on power of Netanyahu, who is being prosecuted on multiple corruption charges.

After months of relative success focused on fiscal and other pragmatic reforms, rifts have recently widened within the government over security issues, settlements and other flashpoints in the Israeli-Palestinian conflict. Joint List party leader Mansour Abbas, whose political support was first courted by Netanyahu ahead of last year’s elections, has temporarily suspended his party’s participation in the coalition to protest the actions of Israeli police against protesters at the al-Aqsa Mosque in the Old City of Jerusalem.

Clashes in the Old City put increasing pressure on Israel’s fragile government

Prime Minister Naftali Bennett, a former leader of a settler group, has failed to convince enough Palestinian, Israeli or liberal members to support the extension of civil law to the settlements – which they consider fundamentally unjust – if only to keep the coalition viable. He and his coalition co-leader, foreign minister Yair Lapid, a centrist, have until June 30 to find additional votes.

“As always after a loss, we will come back stronger and win the next round,” Lapid said in a tweet after the measure failed to pass.

Failure to renew the civil legislation would mark a shift in Israeli governance – the legal umbrella over settlements has been regularly renewed for more than 50 years.

It could erode the carefully cultivated sense of Israeli normalcy that settlers covet in their towns and villages, which most of the international community sees as illegally built on Palestinian territory. For decades, this provision granted settlers the same status as citizens living in Israel regarding adoptions, policing, national health care, taxes, insurance and other matters.

Lawyers say ending the system could subject settlers to the same military law that governs Palestinians in nearly a third of the West Bank under direct Israeli control, though the military would likely find ways to accommodate Israelis in the territories. (Other areas of the West Bank are more directly under the control of the Palestinian Authority, although the Israeli military has a say everywhere.)

The Israel Defense Forces declined a request for comment on whether the military was ready to take over law enforcement in the settlements.

Few places in the West Bank offer a sharper contrast between the legal structures governing Israelis and Palestinians than Hebron, where the applicable law passes not just from city to city but from house to house.

“In Hebron, the law goes from person to person,” said Roni Pelli, a lawyer for the Association for Civil Rights in Israel.

Pelli said two Hebron residents, an Israeli and a Palestinian — “let’s call them Abraham and Ibrahim” — who commit identical crimes face very different proceedings.

“Abraham will always end up in the regular courts of Israel,” she said. “He has freedom of expression, to protest his treatment or for any other cause.”

Palestinian “Ibrahim” would land in military court on a military base before uniformed judges, with far fewer protections for his rights, she said.

“This system is not put in place to protect the suspect. The penalties are much tougher,” Pelli said.

Among the differences, according to Pelli: Palestinians’ homes can be searched without court authorization, and Palestinians can be more easily detained without a warrant and held before charge for 48 hours – compared to 24 hours for settlers. Palestinian minors can be arrested at the age of 12, two years before Israeli children can be detained.

“I have seen Palestinian children fighting with Jewish children, and only the Palestinian boy is caught,” said Amro, an electrical engineer and political activist.

Amro said he was arrested several times during protests against the occupation. At an event in 2013, he and several Israeli peace activists wore masks of President Barack Obama and the Reverend Martin Luther King Jr. When soldiers cut him off, he was arrested and the Israelis were allowed to leave, did he declare.

“It’s two sets of laws for two different people in one place,” he said. “It’s apartheid.”

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Courts reject company’s request to be represented by a consultant – Civil Law https://prosecutebushcheney.org/courts-reject-companys-request-to-be-represented-by-a-consultant-civil-law/ Thu, 02 Jun 2022 08:27:13 +0000 https://prosecutebushcheney.org/courts-reject-companys-request-to-be-represented-by-a-consultant-civil-law/ June 02, 2022 Gardiner Roberts LLP To print this article, all you need to do is be registered or log in to Mondaq.com. Our justice system is designed to operate efficiently and uphold the highest principles of integrity. In general, parties appearing in court must either be represented by an attorney duly licensed […]]]>

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Our justice system is designed to operate efficiently and uphold the highest principles of integrity. In general, parties appearing in court must either be represented by an attorney duly licensed by the respective provincial bar associations or represent themselves. A party cannot simply be represented by an “agent”. With respect to corporations, Ontario
Rules of civil proceduremandate that a company must be represented by a lawyer and that the authorization of the court must be sought when a company seeks to represent itself. However, as recently determined in Brayson Properties Inc. “In Trust” c. Muchos2022 ONSC 940 (not yet available on CanLII), the threshold for a corporation to be self-represented is high, and further, a corporation cannot be represented by an “attorney”.

The company in this case brought an application under the rule
15.01(2) of the Rules of civil procedure to be represented by JM, who described himself as an “executive consultant”. Although he was the son of the officer of the company, JM was neither a lawyer, nor a director, nor an officer of the company.

The action of the corporation was also complex. It was a claim related to a failed purchase of property and sought $6 million in damages for fraud, breach of contract and unlawful interference with contractual relationships.

JM argued that he should be allowed to represent the company on the basis that he had been licensed to represent companies before and had sufficient knowledge and experience to represent his father’s company in this action.

The defendants disagreed for several reasons, including that JM would likely be the main witness in the action because he had been heavily involved in the failed real estate transaction and there had already been irregular circumstances related to the handling of the case. The defendants showed that JM requested that they be noted in default despite serving a defense and counterclaim and that JM filed affidavits containing hearsay and privileged settlement discussions with one of the defendants’ attorneys. .

Although the rules give the Court the discretion to allow a corporation to be represented by a non-lawyer, the case law demonstrates that this discretion is guided by a number of non-exhaustive and public policy factors.

In Extend-A-Call Inc. c. Granovsky2009 CanLII 33047 (ON CS), the Court listed a number of factors to be considered in a motion seeking permission for a company to be represented by a non-lawyer. These factors included whether the proposed representative was related to the company, whether the proposed representative was reasonably capable of understanding the issues in the case and representing the interests of the company, and whether the company was financially able to hire a lawyer.

The Court is also bound to take into account the interests of justice when a company seeks to be represented by a non-lawyer since the representation by a non-lawyer of any litigant is contrary to the
Law Society Act and the
Lawyers Act, which govern the authorized and unauthorized exercise of law. Representing a party in a legal proceeding constitutes the practice of law. In addition, when a person unrelated to a company is authorized to represent the company, the person incurs no financial consequences.

These public policy concerns have been commented on by the courts in cases such as Leisure Farm Construction Ltd. vs. Dalew Farms Inc.2021 ONSC 105 and Robert M. Simon Construction Ltd. vs. Waterloo (Municipality)2007 CanLII 18741 (ONSC).

In the circumstances, the Court rejected the company’s request to be represented by JM.

In addition to accepting public policy reasons for limiting a corporation’s ability to be represented by a non-lawyer, the Court also noted that:

(a) the company was a private company, the assets of which could not be located by the defendants;

(b) JM held no official position with the company;

(c) Government of Canada records revealed that JM was subject to pending bankruptcy proceedings;

d) JM was a likely witness in the case;

(e) a previous case in which JM had been an agent of a company was found to be frivolous and vexatious, with costs awarded against the company; and

(f) there was a real risk of material harm to the defendants if the company was not represented by counsel.

Nor did the evidence presented in the motion reveal that the company was financially unable to hire a lawyer. In fact, the opposite appeared to be true because the owner of the company had filed that the company would hire an attorney if and when it deemed it necessary.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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Meretz to back civil rights bill for settlers, but tensions within coalition reportedly persist https://prosecutebushcheney.org/meretz-to-back-civil-rights-bill-for-settlers-but-tensions-within-coalition-reportedly-persist/ Wed, 01 Jun 2022 15:48:47 +0000 https://prosecutebushcheney.org/meretz-to-back-civil-rights-bill-for-settlers-but-tensions-within-coalition-reportedly-persist/ The left-leaning Meretz party will back a bill extending Israeli legal protections to West Bank settlers whom Justice Minister Gideon Saar has threatened to test the survival capacity of the diverse and fragile coalition. Meretz MK Michal Rozin said the left-wing faction’s support is based on coalition agreements not to make major changes to the […]]]>

The left-leaning Meretz party will back a bill extending Israeli legal protections to West Bank settlers whom Justice Minister Gideon Saar has threatened to test the survival capacity of the diverse and fragile coalition.

Meretz MK Michal Rozin said the left-wing faction’s support is based on coalition agreements not to make major changes to the status quo regarding the Palestinians, a key part of the pact that holds the disparate government together.

The ruling leaves the Islamist Ra’am party as the only apparent holdout against the bill within the coalition.

Ra’am has been tight-lipped about how he will vote on the bill, but is believed to generally object to settlers being granted rights denied to Palestinians.

Party leader MK Mansour Abbas was working to persuade members of his faction to back the bill, Channel 12 reported.

Meanwhile, the TV channel reported lingering tensions during a meeting called by Prime Minister Naftali Bennett with other party leaders from the ruling coalition of left, center and right factions with Ra am. Saar said the government’s future hinged on the bill’s passage. Reports earlier on Wednesday said he was holding talks with opposition figures on a potential new government.

Sources said Saar was “irritable” at the meeting, warning that it is not possible to maintain a government when each party in the coalition does what it wants. Foreign Secretary Yair Lapid then reportedly confronted Saar, saying, “The question is how do you handle this, and do you want to fix it or break it? [the government] a part?”

Coalition leaders are reportedly intrigued by Saar’s stance on the issue, believing differences between them can be resolved.

Meretz MK Michal Rozin attends a Knesset committee meeting on June 21, 2021. (Yonatan Sindel/Flash90)

Saar said that if the bill is not passed, Israeli settlers will be subject to the same military legal system as Palestinians, which he described as a disastrous outcome. Under the bill, Palestinians remain subject to a separate military justice system.

“There is no doubt that this continues the status quo,” Rozin told Channel 12. What was will be.

She also accused members of the right-wing coalition parties of trying to portray Meretz as seeking to break up the government, while suggesting that Saar and his New Hope party were the ones seeking to do so.

“Maybe they already have another government, that’s what it looks like. Because otherwise, in my opinion, it would be possible to solve this without creating this crisis,” Rozin said.

His comments came as Channel 13 news reported that Meretz MK Ghaida Rinawie Zoabi had drawn up a list of demands for her to back the bill, including a government move to set up a fund. State to provide guarantees for mortgages in the Arab community; the formation of a working group to study the creation of a new Arab city in the north of the country; and the allocation of 500 million shekels ($150 million) for the northern city of Nazareth, his hometown.

Rinwawie Zoabi, who announced last month that she would no longer vote with the coalition only to backtrack a few days later, also demanded greater representation of Israeli Arabs in public office and in the allocation of land for educational institutions.

Last month, Zoabi announced she would no longer vote with the coalition because it leaned too far to the right, but reversed her position days later, reportedly after striking a deal for the government to provide hundreds of millions of shekels to Arab Israel. community.

MK Nir Orbach, a member of Bennett’s Yamina party, tweeted that the government “must not give in to endless blackmail from some Arab Knesset members. Not MK Zoabi, not just anyone.

The bill “must pass,” he wrote.

Foreign Minister Yair Lapid meets with Meretz MK Ghaida Rinawie Zoabi at the Foreign Ministry in Jerusalem on May 22, 2022. (Oz Avital)

Saar had planned to put the bill to a vote this week, but delayed it over fears it would not have enough support in the Knesset. The vote will take place next Monday.

The opposition has pledged to oppose the bill even though the right-wing religious bloc led by Likud supports the extension of rights. With the government and opposition having equal seats in the Knesset, the opposition has pledged to oppose any coalition legislation with the aim of bringing down the government.

The bill would renew an emergency measure extending Israeli criminal law and some key civil laws — such as income tax and health insurance — to Israelis living in the West Bank. Although Israel has not annexed the West Bank, the measure ensures that settlers living there are treated as if they were living in Israel in most cases, without extending those same legal protections to Palestinians.

Originally enacted in the aftermath of the 1967 Six-Day War, the law remains an “emergency measure” which must be renewed every five years. Last adopted in 2017, it is due to expire at the end of June.

Political turmoil prompted Defense Minister Benny Gantz to delay a visit to India, for the second time, after opposition lawmakers refused to make up for his absence from Knesset votes.

Gantz was due to travel to India to sign a “special security declaration” marking 30 years of security and diplomatic relations between the countries. The trip was originally scheduled to take place in late March, but Gantz delayed it amid a series of deadly terror attacks in Israel and the West Bank.

Hours before his scheduled departure on Wednesday, a Likud party source confirmed that the opposition would “absolutely” refuse to offset Gantz’s vote.

Defense Minister Benny Gantz leads a meeting of the Blue and White faction at the Knesset, May 30, 2022. (Olivier Fitoussi/Flash90)

Vote compensation is a common practice in the Knesset, whereby a coalition and an opposition MK nullify their votes through a mutually agreed absence or abstention.

It was not immediately clear whether Gantz would fly later in the day. A Defense Ministry spokesperson said the trip would take place at a later date or time, and a Blue and White party spokesperson said he would remain in the country for the time being.

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Minister: Vote on renewing civil law for settlers is a test for coalition’s survivability https://prosecutebushcheney.org/minister-vote-on-renewing-civil-law-for-settlers-is-a-test-for-coalitions-survivability/ Tue, 31 May 2022 07:00:00 +0000 https://prosecutebushcheney.org/minister-vote-on-renewing-civil-law-for-settlers-is-a-test-for-coalitions-survivability/ Justice Minister Gideon Saar warned on Tuesday that the government’s future could hinge on the passage of a technical but controversial bill to renew a law extending Israeli civil and criminal legal protections to Israelis living in the West Bank. The bill, opposed by dovish and Islamist politicians in Prime Minister Naftali Bennett’s coalition, was […]]]>

Justice Minister Gideon Saar warned on Tuesday that the government’s future could hinge on the passage of a technical but controversial bill to renew a law extending Israeli civil and criminal legal protections to Israelis living in the West Bank.

The bill, opposed by dovish and Islamist politicians in Prime Minister Naftali Bennett’s coalition, was shelved for a week on Monday after coalition leaders failed to get enough support. measurement support.

“Next week will be a test, whether this coalition wants to exist or does not want to exist,” Sa’ar told Kan public radio, calling the measure “essential”.

The bill would renew an emergency measure extending Israeli criminal law and some key civil laws — such as income tax and health insurance — to Israelis living in the West Bank. Although Israel has not annexed the West Bank, the measure ensures that settlers living there are treated as if they were living in Israel in most cases, without extending those same legal protections to Palestinians.

Originally enacted in the aftermath of the 1967 Six-Day War, the law remains an “emergency measure” which must be renewed every five years. Last adopted in 2017, it is due to expire at the end of June.

Saar, whose radical New Hope party supports settlements and opposes the creation of a Palestinian state, told Kan that unless the measure passes, Israeli settlers will be subject to Israel’s military justice system. , which is based on Jordanian law. He said such a situation had never happened.

A policeman and IDF soldier guard the exterior of the ultra-Orthodox settlement of Beitar Illit in the West Bank, which is under a week-long lockdown due to a high rate of coronavirus infections, July 8, 2020. (Yonatan Sindel/Flash90)

“It will create chaos for justice issues in Judea and Samaria,” he said, using a biblical term for the West Bank. “It will harm the territory’s connection to Israel and Israeli law and harm some 500,000 Israelis living in Judea and Samaria.

While the right-wing Likud-led religious bloc in the opposition backs the renewal in principle, it has pledged not to join the majority in passing it, pledging to oppose any sponsored legislation by the government, whatever the content.

Sa’ar described the opposition’s refusal as “not only unprecedented but also dangerous”, but appeared to compel members of his own coalition to line up behind the measure.

“Any coalition member who votes against it says ‘I don’t want this government,'” he said, adding that he had explained its importance to other party leaders.

Prime Minister Naftali Bennett, center, and Foreign Minister Yair Lapid, left, at the Knesset on May 9, 2022. (Yonatan Sindel/Flash90)

“There are laws that you want to pass, and nothing happens if they don’t, and laws that need to be passed. This law is of the second category,” he said.

Sitting in close parity of 60-60 seats with the opposition in the 120-member Knesset, the big tent coalition includes parties from across the political spectrum, including the Islamist Ra’am party. While Ra’am has backed contentious measures in the past, the party has complained that the coalition has failed to deliver on pledged commitments, causing its four MPs to lose support on the street and lose them. less responsive to coalition demands. The party temporarily froze its participation in parliamentary activities last month to protest the state’s handling of the unrest on the Temple Mount.

Ra’am is currently tight-lipped about how he would vote on the bill if the coalition is rushed.

Ra’am leader MK Mansour Abbas (center) gives a statement to the press at the Knesset, in the presence of party MKs Walid Taha (left) and Mazen Ghanaim (right), May 11, 2022 (Olivier Fitoussi/Flash90)

On Monday, Saar withdrew the Knesset proposal, saying in a statement that Bennett and Foreign Minister Yair Lapid had asked him to delay the vote for a week, “to maximize efforts to pass this vital law.” .

The government appeared to be trying to put a Ra’am complaint to bed, with Finance Minister Avigdor Liberman agreeing to fund another 35 community imams through the Home Office.

Bennett’s coalition has struggled to control its MPs and parties in recent weeks, bringing the government to the brink of collapse amid a long series of wrangling over policy positions and security tensions.

Interior Minister Ayelet Shaked holds a press conference at Ben Gurion Airport near Tel Aviv on March 13, 2022. (Roy Alima/Flash90)

On Tuesday, Bennett’s Yamina party appeared to open a new front, criticizing Liberman’s efforts to cut funding to ultra-Orthodox yeshivas, which he accuses of promoting idleness.

“This coalition is based on agreements and we will fulfill our duties and ensure that Torah students are not harmed,” Interior Minister Ayelet Shaked said in a video recorded alongside fellow politician Yamina. Nir Orbach, outside a government-run religious high school in Zichron Yaakov.

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FIR Cancellation in Civil Litigation – Civil Law https://prosecutebushcheney.org/fir-cancellation-in-civil-litigation-civil-law/ Thu, 12 May 2022 12:48:15 +0000 https://prosecutebushcheney.org/fir-cancellation-in-civil-litigation-civil-law/ May 12, 2022 Defenders of SS Rana & Co. To print this article, all you need to do is be registered or log in to Mondaq.com. Whenever an offense is committed, it can be reported to a police officer in charge of the police station by any aggrieved person. This report is known […]]]>

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Whenever an offense is committed, it can be reported to a police officer in charge of the police station by any aggrieved person. This report is known as the First Information Report (FIR). However, the term FIR is not defined but Section 154 of the Code of Criminal Procedure, 19731 relates to the FIR and indicates as “information in known cases”.

Reporting of FIRs has also become a tool of abuse as frivolous FIRs are filed against innocent people if there is dishonest intent to harass them at the hands of the law. Such a case is when a criminal proceeding is maliciously initiated with an ulterior motive to revenge against a person and with a view to antagonizing him due to a private and personal grudge.

Fate of frivolous FIR in civil disputes

So, to deal with the threat, the honorable high courts in India can be approached by any aggrieved person against the frivolous FIR filed against him. Petition under Article 482 of the CrPC2 may be filed with the Hon’ble High Courts for annulment of the FIR where the Hon’ble High Courts may exercise their inherent powers to secure the ends of justice for the innocent. There have been cases where a civil dispute is already pending in the Hon’ble Courts, but frivolous FIRs are filed by one party to bring criminal charges against the other, only to harass them. However, the Supreme Court of India in a series of judgments ruled against frivolous FIRs, thus nullifying them in the interests of justice.

Judicial trends

  • The Honorable Supreme Court of India renders its judgments
    Hira Lal Hari Lal Bhagwati vs. CBI3 dated May 2, 2003 and Y.Jose v. Gujarat State4 dated December 16, 2008 held that to establish the offense of cheating, the plaintiff is required to demonstrate in the FIR that the accused had fraudulent or dishonest intent in making the promise of representation, and his failure to keep his promise afterwards, such a guilty intention from the beginning, i.e. at the time when the promise was made, cannot be presumed.

  • The Honorable Supreme Court of India in its Judgment
    Vesa Holdings P.Ltd. vs. state of kerala5 dated March 17, 2015 observed that not every breach of contract would give rise to an offense of cheating and that in those only cases breach of contract would amount to cheating where a cheating had been played from the outset. The Apex Court further observed that if the intention to cheat subsequently developed, this cannot be equated to cheating because, in order to constitute an offense of cheating, the plaintiff is required to show that the accused had fraudulent or dishonest intent at the time. to make a promise or representation. Even in a case where allegations are made of the accused’s failure to keep his promise, in the absence of guilty intent at the time of the initial promise, no offense under section 420 of the Indian Penal Code, 1860 can be established. Thus, criminal prosecutions should not be encouraged when they prove to be in bad faith or otherwise an abuse of the legal process.

  • The Honorable Supreme Court of India in its Judgment
    Sushil Sethi vs Arunachal Pradesh State6 as of January 31, 2020 found that where a dispute between the parties is only civil fault and not criminal fault, the courts would not allow a person to be harassed although no case of knowledge of the offense has been established. The brief facts of this case are that an FIR under Section 420 of the Indian Penal Code, 18607 was filed against the managing director and director of a company which entered into a contract with the government of Arunachal Pradesh for the construction, supply and commissioning of a power project. There was a dispute over the payment of child support and subsequently the plaintiff was filed alleging substandard materials in breach of contract. The Apex court observed that no FIR/complaint/indictment had been filed against the company and instead the employees were charged. The Apex Court found that from a simple reading of the FIR, there was no allegation that there was a fraudulent and dishonest intent to deceive the government from the outset of the transaction, and even there was no There was no specific allegation in the FIR that said employees were responsible for the administration and management of the business, making them vicariously liable. Thus, the FIRs filed against the accused were quashed under Section 482 of the Code of Criminal Procedure, 19738.

Conclusion

Thus, where a criminal prosecution is maliciously brought with an ulterior motive to exact revenge against a person while a civil remedy is in accordance with the law, the FIR can be canceled under article 482 of the Code of Criminal Proceedings 1973 by the Honorable High Courts in the exercise of their inherent powers to prevent the abuse of the process of law to secure the ends of justice.

Karanveer Singh, Partner at SS Rana & Co. assisted in researching this article.

Footnotes

1.154 of CrPC. Information in knowable cases.

2.482 of CrPC. Safeguarding the inherent power of the High Court.

3.AIR 2003 SC 2545

4. (2009) 3 SCC 78

5. (2015) 8 SCC 293

6.AIR 2020 SC 765

7.420 of the IPC. Cheating and dishonest inducement to deliver goods.

8. 482. Safeguard of the inherent powers of the High Court.

For more information, please contact SS Rana & Co. email: info@ssrana.in or call (+91- 11 4012 3000). Our website can be accessed at www.ssrana.in

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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Civil Appeals and Judicial Reviews: Common Mistakes and Pitfalls (video) – Civil Law https://prosecutebushcheney.org/civil-appeals-and-judicial-reviews-common-mistakes-and-pitfalls-video-civil-law/ Tue, 10 May 2022 12:12:03 +0000 https://prosecutebushcheney.org/civil-appeals-and-judicial-reviews-common-mistakes-and-pitfalls-video-civil-law/ May 10, 2022 Torkin Manes LLP To print this article, all you need to do is be registered or log in to Mondaq.com. On Wednesday, May 4, 2022, Marco Falco presented an educational program in collaboration with the Toronto Lawyers Association and LexisNexis Canada on the most common mistakes made by litigators that […]]]>

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On Wednesday, May 4, 2022, Marco Falco presented an educational program in collaboration with the Toronto Lawyers Association and LexisNexis Canada on the most common mistakes made by litigators that can lead an appeal or judicial review application down the wrong path.

In the video below, Marco explains:

– Common Mistakes Litigants Make During an Appeal Process
– How to appeal a decision or request a judicial review
– Good practices / things to avoid
– Best practices for written and oral argument on appeal
– How to apply these best practices to perfect your calling strategy
– Legal tools to rely on when drafting documents for an application for judicial review or appeal

self

Originally published by LexisNexis Canada Inc.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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An Update on COVID-19 Class Actions in Canada

Bennett Jones LLP

Nearly 2 years after the launch of more than 30 proposed class actions stemming from the COVID-19 pandemic upended the Canadian class action landscape, pandemic-related class actions are at risk…

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Litigation 2022 – Civil law https://prosecutebushcheney.org/litigation-2022-civil-law/ Fri, 06 May 2022 14:58:48 +0000 https://prosecutebushcheney.org/litigation-2022-civil-law/ To print this article, all you need to do is be registered or log in to Mondaq.com. 1 Litigation – Preliminaries 1.1 What type of legal system does your jurisdiction have? Are there rules that govern civil procedure in your jurisdiction? The Mexican legal system is governed by civil law. The Mexican Constitution establishes that […]]]>

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1 Litigation – Preliminaries

1.1 What type of legal system does your jurisdiction have? Are there rules that govern civil procedure in your jurisdiction?

The Mexican legal system is governed by civil law. The Mexican Constitution establishes that matters not expressly assigned to the federal government are within the jurisdiction of each Mexican state, including civil matters. Therefore, each Mexican state has its own local Civil Procedure Code.

However, there is also a Federal Code of Civil Procedure, which may be applicable throughout the country depending on the case. This code can also be applied as a supplement whenever local codes do not regulate a specific situation.

1.2 How is the civil justice system in your jurisdiction structured? What are the different levels of appeal and are there specialized courts?

The civil justice system in Mexico mainly comprises three levels: the courts of first instance; Courts of Appeal ; and federal collegiate courts. Trial and appellate courts may be federal or local, depending on the plaintiff’s decision or if the dispute arises out of an agreement in which the parties have agreed to submit it to the jurisdiction of a specific court. However, the three-tier structure remains the same.

Trial courts

Local civil courts or federal district courts are the lowest Mexican courts to conduct civil proceedings. The decisions of these courts can be challenged before the courts of appeal.

Courts of Appeal

The courts of appeal are responsible for ruling on the appeals lodged by the parties against the decision of the courts of first instance. The parties are not allowed to produce other evidence unless it is related to a possible cause for dismissal of the main action. The decisions of the Courts of Appeal can be challenged by the parties through a so-called “Amparo” trial before a Collegiate Court.

Collegiate Federal Courts

The Collegiate Courts are always federal, in that they oversee the resolution of appeals and the remedies provided by federal laws, such as the “Amparo” law. As before the courts of appeal, the parties are not allowed to produce other evidence unless it is related to a possible cause for the dismissal of the main action. Cases are heard and judged by a panel of three magistrates, whose decision is final.

The Supreme Court

The Supreme Court is the exceptional Court of Appeal of last resort in Mexico. It is exceptional because, for this Court to hear litigation, one of the following must exist: (i) the Supreme Court decides to hear an appeal from the Federal Collegiate Courts because of the general public importance of the case at issue, or whether the interests of justice require the Court to hear the case; or (ii) the unconstitutionality of a regulation has been brought before the courts of appeal.

1.3 What are the main stages of civil proceedings in your jurisdiction? What is their underlying timeline (please include a brief description of any expedited trial proceedings)?

The main stages of a civil proceeding in Mexico may vary slightly depending on the type of proceeding initiated. However, the main steps are normally as follows:

I. Initial Brief and Response

Proper civil litigation begins with the filing of the lawsuit with the court, which may admit, dismiss, or seek clarification of the lawsuit. If the lawsuit is admitted, the court will serve the defendant, granting a statutory time limit to file the answer and any counterclaim. If the defendant files a counterclaim, the other party will be served to file its reply brief.

At this stage, the parties are required to provide all their documentary evidence, specifying which evidence is in their possession and which is not. The evidence they have must be presented with their brief. If not, the parties must explain why they do not have such evidence.

After responding to the original claim and counterclaim, if any, the judge will set a date for the preliminary hearing where the parties can discuss and reach an agreement. It is important to consider that this hearing is not contemplated in the Federal Code of Civil Procedure, but it is contemplated in some local codes. Therefore, this step will depend on the code under which the civil litigation is being prosecuted.

II. Proof period

After filing the response to the original claim or counterclaim, the judge will grant the parties a legal time limit to offer and present evidence. At this time, the parties may offer confessional, testimonial and/or expert evidence, in addition to exhibiting pending documentary evidence.

Once the evidence has been presented and presented, the judge will decide whether to admit it and schedule an evidentiary hearing during which all admitted evidence will be prepared and conducted, e.g. testimonies, confessions and expert opinions .

III. Final allegations

Once all the evidence has been filed and conducted, the judge will give the parties a legal time limit to file the brief of closing allegations, which are the parties’ last statements before the judge issues the resolution.

IV. Decision

Once the allegations period is over and the parties have submitted their briefs, the judge will issue the resolution, which can be challenged in an appeals court. The resolution of such an appeal may also be challenged through a so-called “Amparo” lawsuit, which will be resolved by a federal collegiate court.

The duration of civil proceedings in Mexico depends on the complexity of the case and the volume of the elements that make up the dispute, for example the evidence presented by the parties. In addition, in Mexico, any provisional or incidental decision rendered by the judge can be appealed.

As a result, it can take one to three years to obtain resolution at the first stage of traditional civil litigation. However, given the fact that a first instance decision can be challenged before a Court of Appeal and before a Circuit Court as a last resort, the entire procedure can take a minimum of two and a half years, or even up to four to six years in normal cases. Very complex cases can take more than a decade.

1.4 What is the approach of the local court system in your jurisdiction to exclusive jurisdiction clauses?

In Mexico, it is very common in civil acts to agree that in the event of a dispute, the parties expressly waive any jurisdiction other than the Mexican courts, whether federal or state. If this is the case, the Mexican courts will have to apply the said clauses based on contractual freedom, unless a justified and reasoned reason is found not to do so.

1.5 What are the costs of civil court proceedings in your jurisdiction? Who bears these costs? Are there rules on cost budgeting?

The Mexican authorities are required to bear the costs of justice, since the Constitution establishes that justice is free for all.

However, each party is responsible for attorney and expert fees, as well as other litigation-related costs, such as documentation costs and expert fees and other due diligence. There are certain guidelines for courts to order payment of costs and attorneys’ fees, based on the percentage of the amount specifically claimed.

1.6 Are there special rules regarding litigation funding in your jurisdiction? Are contingency fee/contingent fee agreements allowed?

There are no rules regarding litigation funding, contingencies and contingency fee agreements. Any clause or obligation in this matter can be arranged and based on arrangements between a funder and the parties.

1.7 Are there any constraints on the attribution of a claim or cause of action in your jurisdiction? Is it allowed for a third party to a contentious procedure to finance this procedure?

Mexican regulations do not expressly establish constraints on the assignment of a claim. However, the federal and local codes that govern civil proceedings stipulate that only those who have an interest in the judicial authority declaring or establishing a right or pronouncing a condemnation, and those who have a contrary interest, can initiate or intervene in a legal proceeding.

Therefore, if an assignment of the cause of action is sought, it must be shown that the assignee has a legal interest in participating in the litigation. This becomes relevant if you take into account that surrogacy is allowed and regulated in Mexico.

Finally, Mexican law does not regulate any prohibition on third-party litigation funding.

1.8 Can a party obtain security/guarantee for their legal costs?

No, Mexican regulations do not provide for the possibility of obtaining a bond or guarantee for legal costs. However, within the framework of the trial or before its opening, the seizure of sufficient assets to guarantee the outcome of the trial may be ordered at the request of a party, and as a precaution, presenting a guarantee to answer for any damages that could be caused to the person against whom the precautionary measure is taken.

To see the full article click here

Originally posted by ICLG

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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The authority of res judicata and the notion of rejection of a complaint – Civil law https://prosecutebushcheney.org/the-authority-of-res-judicata-and-the-notion-of-rejection-of-a-complaint-civil-law/ Tue, 03 May 2022 09:02:01 +0000 https://prosecutebushcheney.org/the-authority-of-res-judicata-and-the-notion-of-rejection-of-a-complaint-civil-law/ May 03, 2022 Vaish Associates Lawyers To print this article, all you need to do is be registered or log in to Mondaq.com. Article by Vijay Pal Dalmia, Advocate, Supreme Court of India and High Court of Delhi, Partner and Head of Intellectual Property Law Division, Vaish Associates Advocates, IndiaEmail ID: vpdalmia@vaishlaw.comMobile number: […]]]>

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Article by Vijay Pal Dalmia, Advocate, Supreme Court of India and High Court of Delhi, Partner and Head of Intellectual Property Law Division, Vaish Associates Advocates, India
Email ID: vpdalmia@vaishlaw.com
Mobile number: +91 9810081079

The concept of “Res Judicata” evolved from English common law and since then has been defined and interpreted by various judicial decisions. Before moving forward, it is important to understand the concept of Res Judicata which is explained in Article 11 of the Code of Civil Procedure of 1908. According to Article 11 of the CPC, no court may try a action or matter in which the matter is directly and substantially at issue. was directly and substantially involved in a prior action between the same parties, or between parties claimed by them or one of them, pleading under the same title, before a court having jurisdiction to hear that subsequent action or the action in which such issue was subsequently raised, and was heard and finally decided by this Court.

Recently, the Supreme Court in the case of Srihari HanumandasTotala v. Hemant Vithal Kamat & Ors1 (https://main.sci.gov.in/supremecourt/2021/4370/4370_2021_35_1501_29116_Judgement_09-Aug-2021.pdf) interpreted the concept of “Res Judicata” in relation to Ordinance VII Rule 11 of the Code of Civil Procedure of 1908 (“CPC”). To analyze the concept of Rule 11 of Order VII, it is further imperative to understand prima facie that Rule 11 of Order VII sets out the instances in which a “complaint” must be dismissed. This means that the cases discussed therein must be considered prima facie at the time of the presentation of the complaint filed by the plaintiff and not other pleadings.

In the above case, the Supreme Court considered Order 7, Rule 11(d) of the Code of Civil Procedure, 1908 (CPC). Order 7 CPC Rule 11 sets out when a complaint must be dismissed. This includes the dismissal of the complaint:-

  1. when he fails to disclose a cause of action,

  2. when the complaint is insufficient postage, or

  3. the remedy sought is undervalued, and

  4. it further provides that the motion shall be dismissed”where the prosecution appears, from the statement in the complaint, to be prohibited by any law“.

The court emphasized that the allegations in the complaint should form the basis on which to consider whether the complaint is prohibited by law or not.

It was also observed that reference to other documents such as written statements cannot be made to decide the issue.

In addition, the court clarified the definition of the authority of res judicata given in article 11 of the CPC. It was stipulated by the court that in deciding a question concerning res judicata, the same issue (which is raised in the lawsuit) was decided in the first lawsuit. The court referred to the judgment of V. Rajeshwariv. TC Saravanabava2 and emphasized the following lines:

The basic method of deciding the question of res judicata is first to determine the case of the parties as presented in their respective memoranda of their previous action, and then to find out what was decided by the judgment which exercises the authority of res judicata. Not only must the plea be taken, but it must be supported by the production of copies of the pleadings, the questions and the judgment in the preceding case“.

The Court referred to the decision of Kamala and others v. KT Eshwara Sa3 which deal in particular with the question of the authority of res judicata as a ground for dismissal of the application. Judge S.B. Sinha considered the scope of CPC Order 7 Rule 11(d) the court, at this stage, would not consider any evidence or address a disputed question of fact or law. In the event that the jurisdiction of the court is excluded by a law, which means, therefore, the object of the latter, the request for the rejection of the complaint must be granted.

The Court, from the above analysis and judgments, has established 4 guiding principles for deciding an application under Order 7, Rule 119(d). These principles are

  1. To dismiss a complaint on the grounds that the lawsuit is prohibited by law, only the arguments of the complaint need be mentioned;

  2. The defense presented by the defendant in the lawsuit should not be taken into account when deciding on the merits of the claim;

  3. To determine whether an action is statute-barred, it is necessary that


    1. the “previous costume” is decided,

    2. the issues raised in the subsequent lawsuit were directly and substantially in issue in the previous lawsuit;

    3. the first trial was between the same parties or the parties by which they claim, pleading under the same title; and

    4. that these issues were decided and ultimately decided by a court with jurisdiction to hear the subsequent action; and

    5. Since a decision on the plea of ​​res judicata requires consideration of the pleadings, issues and decision in the “previous proceeding”, such a plea will fall outside the scope of Order 7 Rule 11 (d), where only the statements in the Complaint will need to be browsed.

Footnotes

1. Civil Appeal No. 4665 2021

2.(2004) 1 SCC 551

3.(2008) 12 SCC 661.

© 2020, Vaish Associates Advocates,
All rights reserved
Advocates, 1st & 11th Floors, Mohan Dev Building 13, Tolstoy Marg New Delhi-110001 (India).

The content of this article is intended to provide a general guide on the subject. Specialist professional advice should be sought regarding your particular situation. The opinions expressed in this article belong solely to the authors of this article.

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Passing the buck: Payment for productions in a personal injury litigation – Civil law https://prosecutebushcheney.org/passing-the-buck-payment-for-productions-in-a-personal-injury-litigation-civil-law/ Tue, 26 Apr 2022 07:00:00 +0000 https://prosecutebushcheney.org/passing-the-buck-payment-for-productions-in-a-personal-injury-litigation-civil-law/ April 26, 2022 McCague Borlack LLP To print this article, all you need to do is be registered or log in to Mondaq.com. In the recent Endale vs. Parker,1the Superior Court of Justice clarified which party must pay to obtain documents, whether by recognizance or otherwise. This case will hopefully serve to settle […]]]>

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In the recent Endale vs. Parker,1the Superior Court of Justice clarified which party must pay to obtain documents, whether by recognizance or otherwise. This case will hopefully serve to settle this all too frequently contested issue in personal injury litigation.

In Endale, the Court granted the Defendant’s request to order the Plaintiff to respond to undertakings consisting of various medical records, to pay the costs associated with the responding undertakings, and to produce another and better affidavit of documents. The defendant had previously agreed to pay the reasonable costs associated with the reproduction, but argued that the plaintiff should pay the remaining expenses associated with the production.

Of the Rules of civil procedure,2 Rule 30.023 provides that any document relevant to the issues in dispute that is in the power, control or possession of the party must be produced. Rule 30.014 provides that a document is in the hands of a party when the requesting party has no right to obtain the original and the other party has the right to recover it.

The Court found that the documents requested by the defendant were clearly relevant and that the plaintiff had authority over them. The claimant’s argument that the documents were not in their control on the basis that the physician(s) could possibly deny the request based on the claimant’s best interests was not accepted, as no evidence was brought forward indicating that requests had been refused.5 The Court held that “…each party must finance its own case. The obligation to produce documents as required by rule 30.01(1) cannot fall on an opposing party who may have better financial means to obtain the documents.”6 Plaintiff’s argument that there should be a distinction between pre-discovery and post-discovery production was rejected. Instead, the Court ruled that Rule 30.02 must be applied unconditionally, regardless of the stage of the dispute. Barring “exceptional circumstances”, which require some degree of evidentiary support, there was no legitimate reason to deviate from the general rule that each party must fund its own case.

Takeaway meals from Endale that is, except in exceptional circumstances, the party in power, possession or control of the document is liable to pay for obtaining these documents. However, the cost of reproducing these documents, whether by photocopying or otherwise, may very well be borne by the requesting party.

Footnotes

1 Endale vs. Parker2022 ONSC 2008

2 Rules of Civil Procedure can be found on the Government of Ontario website

3 Scroll right to Rule 30.02 of the Rules of Civil Procedure

4 Scroll right to Rule 30.01 of the Rules of Civil Procedure

5 McInerney v. MacDonald1992 CanLII 57 (SCC), [1992] 2 SCR 138 at p. 154: “[â?¦] If the physician reasonably believes it is not in the patient’s best interests to inspect their medical records, they may find it necessary to deny access to the information.”

6 Endale to para 17.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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