The Applicants filed an Appeal of an Assessment Officer’s decision fixing costs at $300,000 (the “Bill of Costs Appeal”). In another Action, the Court restricted the Applicants’ access to the Court which had the effect of cancelling the Bill of Costs Appeal hearing and an Endorsement was later issued in which the Court declined to grant leave to proceed with the Bill of Costs Appeal but did grant leave for a hearing for advice and directions pursuant to Rule 4.10 to address whether the Respondent was obliged to provide information that had been redacted on the Bill of Costs. The Court had noted that at the Rule 4.10 hearing, the Court was entitled to give leave to proceed with the Bill of Costs Appeal, which neither Party ultimately sought.

Later, after Court access restrictions had been vacated, the Applicants applied for an Order setting a special Application date for the Bill of Costs Appeal, which was denied and they were instead directed to apply for leave to extend the time for the Bill of Costs Appeal. The Applicants sought permission to Appeal this decision on the issue of determining whether the Chambers Judge erred in requiring the Applicants to apply for leave to extend the time for the Bill of Costs Appeal (the “Leave to Extend Time Issue”). 

The Court set out the applicable test in accordance with Rule 14.5(1)(e) for Permission to Appeal a decision as to Costs which requires that: (1) the Applicant must identify a good, arguable case having enough merit to warrant scrutiny by the Court; (2) the issues must be important, both to the parties and in general; (3) the Appeal must have some practical utility; and (4) the Court should consider the effect of delay in proceedings caused by the Appeal.

The Court noted that (1) an error as to the Leave to Extend Time Issue was important to the Applicants, (2) the Applicants may not have been able to satisfy the criteria for leave to extend time and would accordingly lose the ability to challenge the $300,000 Costs award on the merits; (3) the requisite general importance existed with respect to the applicable framework for addressing delay in an Appeal from an Assessment Officer’s decision and more generally in ensuring that requirements imposed on parties that could deprive them of an Appeal are justified; (4)  the proposed Appeal had practical utility; and (5) the Court was not aware of any proceedings that would be delayed by the proposed Appeal to this Court.

The Application for permission to Appeal was accordingly allowed with respect to the Leave to Extend Time Issue.