3.26: Time for service of statement of claim
3.27: Extension of time for service
6.14: Appeal from master’s judgment or order

Case Summary

In the underlying Decision, after the expiry of the one-year period of time within which it was required to serve a Statement of Claim under Rule 3.26, the Plaintiff applied pursuant to Rule 3.27 for an extension of time to serve a Statement of Claim. Applications Judge Farrington granted a two-month extension on the grounds that the course of dealings between the Parties gave rise to a belief that the strict deadlines in the Rules would not be strictly relied upon, or in the alternative that there were special or extraordinary circumstances that justified an extension. The Defendant appealed that Decision. Justice Feasby noted that pursuant to Rule 6.14, an Appeal from an Applications Judge’s Judgment or Order is an Appeal on the record of the proceedings before them and may also be based on additional relevant material, however no additional material was provided.

The underlying claim arose from two car accidents. The Plaintiff’s initial counsel filed the Statement of Claim and exchanged emails with an adjuster for the Defendant’s insurer. The adjuster, knowing that his client had not been served, asked that no steps be taken without notice and that a Statement of Defence not be required and the Plaintiff’s initial counsel agreed. The Plaintiff’s initial counsel asked for information required to enable them to serve the Defendant twice, but the adjuster did not respond to those. Subsequently, the Plaintiff’s initial counsel took an in-house role and another lawyer agreed to represent the Plaintiff. That lawyer was provided an incomplete hard copy file and no electronic copy. The new lawyer served an Affidavit of Records on all Parties and settled the matter with some of the Defendants involved in the first accident by way of a Pierringer Agreement that was assigned by the adjuster for the Appellant in this matter.

Justice Feasby noted that Rule 3.27(1)(a)(iii), which states that a Court may grant an extension of time when a Defendant or a Party acting for a Defendant has caused a Plaintiff or their lawyer to believe that a time limit or time period relating to an Action will not be relied upon or waived, could be viewed as a sort of codification and modification of promissory estoppel in the limited context of extensions for the filing of a Statement of Claim. His Lordship found that the circumstances in this immediate instance, including settlement discussions, gave rise to a reasonable belief that service of the Statement of Claim would not be required without prior notice, and that the execution of Pierringer Agreement could also operate as an admission that service was in order or as an estoppel to that effect. Accordingly, Justice Feasby dismissed the Appeal.

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