The Applicants applied for permission to Appeal an Order of the Court of King’s Bench, which had been an Appeal of a decision of an Applications Judge. The underlying issue was extending the time for service of a Notice of Appointment filed by the Respondent for a review of the Applicant’s retainer agreement and fees invoiced for legal services rendered.

After the Applicant had rendered a final account to the Respondent, the Respondent filed a Notice of Appointment within six months, which was the time limitation in Rule 10.10. However, the Respondent did not serve the Notice until 10 days before the scheduled appointment with a Review Officer. The Chambers Judge heard an Appeal from an Application Judge’s Decision where the Respondent applied to extend the time for service of the Appointment pursuant to Rule 13.5. This was allowed by the Applications Judge and upheld by the Chambers Judge.

The Respondent alleged that the Applicant required permission to Appeal an Order dealing with the extension for time for service. Rule 14.5(1)(b) states that permission to Appeal must be obtained for “any pre-trial decision respecting adjournments, time periods or time limits”. The Applicant stated that this Rule should not apply because Rule 14.5(1)(b) would have the effect of determining the Applicant’s substantive right to contest the Review Officer’s jurisdiction to proceed with a Review. The Applicant argued that Rule 14.5(1)(b) is engaged only where an Appeal does not determine all or some significant part of a Party’s substantive rights and is confined to Appeals of “interlocutory orders that schedule litigation steps or hearing dates”.

The Court of Appeal noted that time limit variation pursuant to Rule 13.5 is a discretionary decision that attracts a highly deferential standard of review. The test for permission to Appeal is: “(a) the proposed appeal involves an important question of law or precedent; (b) the applicant has a reasonable chance of success; and (c) the appeal will not unduly hinder the progress of the action or cause undue prejudice”.

The Court of Appeal noted that “where no error of law or fact can be identified, the decision to grant or refuse an extension will not be disturbed unless it is so aberrant that ‘no reasonable judge regardful of his duty to act judicially could have reached it’”. In the Court of Appeal’s view, the Applicant did not have a reasonable prospect of success considering such a high threshold of standard of review, and granting permission to Appeal would unduly delay the Review. The Court of Appeal denied the Application for permission to Appeal.