26TH AVENUE RIVER HOLDING LIMITED PARTNERSHIP v WINSPIA CO LTD

The Appellant sought to appeal a decision refusing to set aside two Orders extending the time for service of the Respondents’ Statement of Claim. The Court asked the parties for submissions on whether permission to appeal is required under Rule 14.5(1)(b), and if so whether permission should be granted.

The Court of Appeal found that Rule 14.5(1)(b) applied, and that permission to appeal was required because the Appeal was in respect of a pre-trial decision to extend, and to uphold the extension of, the time limit for serving a Statement of Claim, pursuant to Rules 3.26 and 3.27. As permission to appeal was not sought in time, an extension of time to seek permission to appeal under Rule 14.37(2)(c) was also required.

To obtain permission to appeal under Rule 14.5(1)(b), an Applicant must establish: (1) a serious question of general importance; (2) a reasonable chance of success on appeal; and (3) that the appeal will not unduly hinder the progress of the action or cause undue prejudice, without any proportionate benefit. The Court found no serious question of general importance, no reasonable chance of success on appeal, and that the appeal may have delayed the underlying action. These factors weighed against granting an extension of time or permission to appeal.

The Court held that even if an extension of time and permission to appeal had been granted, the Appeal would have been dismissed because the Chambers Judge properly exercised her discretion. She correctly stated and applied the governing legal principles for extensions of time, reasonably accepted the Respondents’ explanation for delayed service when considered alongside findings of no improper delay tactic and no prejudice to the Defendants, and was entitled to deference on Appeal.

The Judge did not err in referring to cross-examination evidence, as it was elicited by the Appellant, consistent with the original Affidavit evidence, and did not undermine disclosure obligations. Her finding of special or extraordinary circumstances justifying the second extension was not based merely on foreign service, but on a fact-specific assessment including the Respondents’ diligence, reliance on uncontrollable third parties, uncertainty and lack of responsiveness in the service process, and absence of delay. The requirement that extraordinary circumstances arise solely from non-party conduct was met despite the Respondents’ earlier choice to delay service, as extensions inherently address missed deadlines.

Finally, any technical non-compliance with the requirement to include the extension Order with service was excusable in the circumstances, since the documents had already been transmitted through an uncontrollable foreign authority and timely notice of the order was otherwise provided.