The Defendant appealed a Decision of the lower Court extending the time for service of a class action Statement of Claim by three months. The Order was granted by an Applications Judge ex parte. The Defendant applied to an Applications Judge to set aside that Order, pursuant to Rule 9.15(4). That Application was denied. The Decision of the Applications Judge was then appealed to a Chambers Justice. That Appeal was also dismissed. The Defendant then appealed the Chambers Justice’s Decision to the Court of Appeal.

On the initial Appeal before the Applications Judge, the Defendant argued that the necessary threshold had not been met to justify extension of service, and that there had not been full, fair, and candid disclosure of the relevant facts. The Applications Judge found that the Application filed with the initial Application had been sufficiently fulsome, and exceeded the bare minimum requirements to justify an extension.

The Chambers Justice then considered the matter de novo on Appeal. The Court concluded that the delays in service were the result of solicitor negligence. However, on review of the law relating to solicitor negligence and Rules 3.26 and 3.27, the Court found that delay caused by solicitor negligence does not preclude an extension. Citing Rule 1.2, the Chambers Justice added that setting aside service might cause a proliferation of actions and complicate and delay the existing class action, which would not serve the purpose and intention of the Rules. The Court consequently dismissed the Appeal.

On Appeal to the Court of Appeal, the Appellants argued that the Chambers Justice overlooked gaps in the evidence regarding efforts to serve each Defendant, and created a new and problematic “solicitor’s negligence” exception to Rule 3.26. The Court declined to comment on the issue of solicitor’s negligence as a principle, but found that the solicitor had not been negligent, as the extension had been sought before expiry of the service period. It then focused on the sufficiency of the evidence before the Applications Judge at the without notice hearing, finding that it was open to the Applications Judge and Chambers Justice to find that the evidentiary record sufficiently supported the Application. Therefore, there was no error in law or principle in granting the extension, and the Appeal was dismissed.