The Applicant obtained an ex parte Order for an extension of time to appeal the decision of an Applications Judge who declined to recuse himself from hearing Applications to Strike the Applicant’s claims against several Defendants. The Defendants asserted that the Action was an abuse of process (the “Recusal Decision”).

In advance of the Appeal hearing, the Respondents cross-applied to set aside the Order on the grounds that the extension was obtained without notice to them, they were denied the opportunity to be heard, and that an extension was not warranted. The hearing of the Appeal and the Cross-Application came before a Chambers Judge, who granted a Procedural Order adjourning the Applications and directing that they be heard concurrently by the Judge who granted the extension. He also granted permission for the parties to request a one-hour hearing for the Appeal and Cross-Application.

The Applicant thus sought permission to appeal the Procedural Order to the Court of Appeal, after which, the Respondents’ Application to vary the ex parte Order pursuant to Rule 9.15 of the Rules was heard by the Judge who granted the extension. At that time, the Order extending the time to Appeal was set aside.

Pursuant to Rule 14.5(1)(b), permission of the Court of Appeal is required to commence an appeal of “any pre-trial decision respecting adjournments, time periods or time limits”. To obtain permission to appeal, an applicant must show: (1) an important question of law or a precedent of importance to the practice; (2) a reasonable chance of success on appeal; and (3) that delay will not unduly hinder the progress of the action or cause undue prejudice to the parties, without any proportionate benefit.

The Court found that the Applicant failed to raise an important question of law or a question with precedential importance. The Chambers Judge's decision to adjourn the hearing was within his discretion and did not constitute a reviewable error. The Respondents' Application to vary the ex parte Order was filed within the required time, and the adjournment provided the Applicant with adequate preparation time. The proposed Appeal had no reasonable chance of success and was moot, as the Cross-Application and dismissal of the extension Application extinguished any appeal from the Recusal Decision. The Court further found that hearing a moot appeal would misuse judicial resources.