A High Court judge has made a preliminary ruling in a long-running financial dispute between a rabbi, his father and brother, and three dayanim from the Beth Din of the Union of Orthodox Hebrew Congregations.
And the ruling — made public on 17th January — could have an adverse effect on future hearings and decisions to be made by Orthodox batei din throughout the country.
Sitting in the High Court of Justice in December last year, Mr Justice Miles reviewed a case between Rabbi Saul Djanogly, who now lives in Israel, against his father David and brother Avi, together with Dayan Dovid Dunner, Dayan Dovid Cohn, and Dayan Mordechai Eisner.
The matter centres on an arbitration claim brought by Rabbi Djanogly against his father, brother, and the three dayanim, challenging a ruling made by the dayanim over a financial row within the family.
Rabbi Djanogly, who enjoys a parallel career as “the Wealth Rabbi”, offering advice on investments, refused to comply with two rulings made against him by two different sets of Jewish religious judges.
The matter was originally heard by the head of the Federation of Synagogues’ Beth Din, Dayan Yisroel Yaakov Lichtenstein, and later by the Beth Din of the Union of Orthodox Hebrew Congregations (UOHC) in Golders Green. Both ruled against the rabbi.
Dayan Lichtenstein considered submissions from the two parties for three years, before making his ruling. Dayan Lichtenstein ruled that Rabbi Djanogly should provide his father with financial support in order for him to live comfortably in his old age as required by Jewish law. David Djanogly is now 85 and in poor health.
However, Rabbi Djanogly did not accept the dayan’s judgement and the disputants were advised to take the matter to a Beth Din. Rabbi Djanogly, it is understood, chose the UOHC Beth Din to hear the case. But when its Beth Din also ruled against him, the rabbi did not accept that ruling either, and so the dayanim of the UOHC Beth Din “regrettably” found him to be a “mesarev l’beis din”. This is a punishment more usually handed out to men who refuse to give their wives a Jewish divorce and effectively bars the person from receiving honours in the synagogue or the community.
Setting out the history of the dispute, Mr Justice Miles said the preliminary issue he was being asked to determine revolved around money lent by David Djanogly to both his sons for the establishment of a property development company, SAS Financial Services.
David Djanogly alleged that from 1985 onwards, he had lent around £610,000 to the company. From 1992, Rabbi Djanogly assumed complete control of the company. David Djanogly, who the judge said lost money in the financial crash of 2007/8, asked for the loan back; the rabbi said that SAS had repaid him, but his father said that this was not the case.
After numerous hearings and written communications the UOHC dayanim ruled against Rabbi Djanogly and ordered him to pay his father a capital sum.
Mr Justice Miles now has ruled that the dayanim do not appear to have considered whether David Djanogly’s original claim had been submitted too late to be valid under English law, and described this failure as “a serious irregularity”.
However, the judge said: “I do not consider that it can be said that the Tribunal [the UOHC Beth Din] has exceeded its powers. It had the power to rule on the disputes and it has done so. This is really a complaint that it has exercised them wrongly (by failing to accept the Limitation Defence)”. The judge said that under the English Arbitration Act the dayanim should have considered this argument, but it appeared they had not done so. The judge expressed no view on whether that argument was correct.
In fact, under halacha, there is no equivalent concept of limitation [of time] for a complaint to be brought. So if a Bet Din is ruling on a case purely from the halachic point of view, it does not need to consider the English Limitation Act. However, if the Arbitration Act 1996 applies to the complaint, a Bet Din does need to consider limitation, because the English Arbitration Act as English law overrides Jewish law.
This ruling therefore could have consequences for all other cases heard by a Bet Din in the UK.
Judge Miles, in his ruling on the dispute, alluded to a 2007 case, Musawi v Musawi, in which the application of Sharia law within Islam was considered, and whether it was liable to be trumped by common law. In that case, Judge Richards ruled that “at common law as well as under statute the applicable law of a contract must be the law of a country”, even if the parties had agreed that the complaint must be considered under Sharia law.
The judge ruled against Rabbi Djanogly on all his other arguments, and a further hearing is due to be held to decide on the consequences of this ruling on the Dayanim’s award.
Avi Djanogly
Avi Djanogly told Jewish News: “I feel very sorry for my brother Saul, who I believe is emotionally damaged. Instead of cherishing and looking after our father who is old and infirm, Saul prefers to wage lawfare. It is sad that my brother, who is an Orthodox rabbi, seems to have forgotten how kind and generous our father always was to both of us and our families. The fact that he has been declared mesarev by the very Bet Din he chose seems to speak volumes as to his actual commitment to the Jewish values he publicly espouses as the “’Wealth Rabbi’”.
David Djanogly said: “I find Saul’s action in taking me, Avi and the dayanim to the English courts abhorrent as it is a blatant breach of halacha that has led only to a huge chillul haShem and sinat chinam (desecration of God’s name and baseless hatred). It is an action that seeks to undermine Jewish law, and is futile as it has no effect on Saul’s mesarev status.
“My prayer, which regretfully I do not believe will be fulfilled, is that by the time of my funeral, this matter will have been long settled and my two sons Saul and Avi will be able to stand together to say kaddish and deliver their eulogies and that Saul’s status will have been restored in the Jewish community.
“Unless this is the case, any eulogy and kaddish delivered by Saul upon my death would be totally worthless and I have told him, before the Bet Din, not to attend my funeral or to say the mourner’s prayer for me, playing the optics, while the reality was and is so different, in that he has not behaved as a son towards me these many years while I am alive and in ill health”.
Rabbi Djanogly’s lawyer, Elliot Lister of Asserson solicitors, said: “I am very pleased that the court has thoroughly reviewed the issues before it and upheld our client’s challenge under the Arbitration Act 1996.”
Rabbi Djanogly said: “The High Court has upheld my legal challenge to the award against me made by the UOHC Golders Green Bet Din. The judge found that they had committed a serious irregularity which in turn had resulted in a serious injustice against me. As the judgment citing the relevant case law, states : ‘There was little or no dispute about the relevant law and the high hurdle which it is necessary for a claimant to overcome in showing a “serious irregularity”. The court will only interfere in an extreme case where “the tribunal has gone so wrong in its conduct of the arbitration and where its conduct is so far removed from what could reasonably be expected from the arbitral process, that justice calls for it to be corrected”. Section 68 [of the Arbitration Act 1996] is designed to deal with procedural unfairness and not with mistakes of either law or fact.’
“It is well known that the chances of successfully challenging a final award under the Arbitration Act 1996 are very low – around five per cent or even lower in some years. I have nonetheless won the challenge and overcome the high hurdle.
“My fight for personal justice, although ultimately successful has been long, costly and arduous. Furthermore, in breach of the confidentiality of the proceedings to date, there has been a distressing campaign waged both in private and public seeking to sanction me for exercising my legal rights. The court found that I had suffered ‘serious injustice’ by the UOHC Beis Din Award and that I was right to challenge it. I hope for the sake of all the parties that this distressing campaign will now come to an end.
“The judgement is also highly significant because it sends a clear signal to all religious courts whether Jewish, Sharia or of other faiths acting as arbitrators in England that they are not above the law of the land as it relates to the proper conduct of an arbitration. In particular they are bound by the mandatory provisions of the Arbitration Act 1996 which are designed to protect the basic legal rights of the parties.”
