The Appellants appealed a Master’s Decision (the “Appealed Decision”) to refuse to set aside a previous Decision (the “Previous Decision”) allowing an ex parte Application to extend the time for service of a Statement of Claim. The Court noted that an Appeal from a Master, now an Applications Judge, is heard de novo.

The Court first considered whether the Appellants were out of time to apply to set aside the Previous Decision. Under Rule 9.15, a Party may apply to set aside, discharge, or vary an Order within 20 days of being served with the Order unless the Court orders otherwise. However, the Court determined that the Appellants applied to set aside the Previous Decision within the time period set out in Rule 9.15 based on the evidence of service before the Court.

The Court then considered the Appeal of the Appealed Decision. The Court noted that Rule 3.26 provides that a Statement of Claim must be served on the Defendant within one year after the date that it is filed. Rule 3.27 allows the Court to extend the time for service at any time including after the time for service has expired where the failure to serve is attributable to the conduct of the Defendant or a person not party to the Action. Rule 3.26(1) provides that an extension to serve a Statement of Claim must not exceed three months but does not specify what reasons or evidence is required to justify an extension.

The Court determined that solicitor negligence led to the failure to serve the Statement of Claim. The Court noted that previous cases have not considered solicitor negligence as a justification for extending the time to serve a Statement of Claim under Rule 3.26 although cases considering Rule 3.27 consistently held that solicitor’s negligence is not a “special or extraordinary circumstance” justifying an extension of the time for service. However, the Court noted that, unlike Rule 3.27, Rule 3.26 contains no requirement for special circumstances.

The Court dismissed the Appeal of the Appealed Decision. The Court determined that solicitor negligence could be considered in an Application under Rule 3.26 to extend the time to serve the Statement of Claim. Feasby J. noted that exercising the Court’s discretion to set aside service of the Statement of Claim would be contrary to the foundational Rule 1.2, which states that the purpose and intention of the Rules is to resolve disputes in a timely and cost-effective manner. The Court also noted there was no evidence that the delay would prejudice the Defendants.