Time limits – get them right !
When making an Application, consider the evidence to be heard and reviewed by the Court prior to calculating the time estimate required. When an Order is received from the Court setting down the hearing, check that the time limit is correct.
The Claimant brought a claim for negligence against his former Solicitors following a claim against a debtor being struck out. The Solicitors had made an Application in that matter to serve proceedings outside the jurisdiction and to extend the time for service. The Application was made on a ‘without notice’ basis and was granted by the Court. The extension for service aspect of that Judgment was later set aside, thereby invalidating the service of proceedings.
In this matter proceedings were commenced and the Defendant made an application which was listed before a Master in December 2021, at which time the Master indicated that 12½ hours was insufficient to hear the Application and that it should be adjourned to be heard by a High Court Judge over a period of 4-5 days with 1 day reading time and 1 day for preparing Judgment. Costs of the adjourned hearing were reserved.
The matter was listed before a High Court Judge and the action was struck out.
Upon consideration of who should pay the costs of the adjourned hearing, the Defendant argued that the Clamant has not raised an issue with the time limit for the hearing. The Court found that a “no order as to costs” finding should be made in relation to the adjourned hearing.
It is the responsibility of both parties to agree a time limit, not just the party making the application.
The Judge awarded the Claimant to pay the costs of the Defendant’s Application, with the exception of the costs for the adjourned hearing. The matter was to be listed for Detailed Assessment with the Court at that hearing to exclude the costs of the adjourned hearing.
There are two other cases of significance when the Court have upheld a decision to set aside the Order extending the time for service of allowing an Appeal to Defendants who objected to the extension of time for service:
- Qatar Investment and Project Development Holding Company & Anor v Phoenix Ancient Art SA (2022);
- Al-Zahara (PVT) Hospitals & Ors v DMM (2019)
How can PIC help?
PIC can assist in preparing the costs of the Application prior to a hearing. We can also review and negotiate costs prior to any Assessment hearing and if required send a Costs Advocate to the hearing to assist in maximum costs recovery.
Jayne Allison, Costs Consultant