Antony Sassi Warren Ganesh March 8 2022 Appeal of order for non-final extension of time – Can "lightning strike twice"? RPC | Litigation - Hong Kong Antony Sassi, Warren Ganesh Litigation IntroductionBackgroundDecisionCommentIntroduction Guangdong Yinggao Shipping Ltd v Secretary for Justice,(1) is an unusual case of significant day-to-day importance. It is unusual because the plaintiff chose to appeal a non-final court order that granted the defendant an extension of time to file and serve their amended defence. Orders for extensions of time with respect to non-milestone court dates (whether by consent or court direction) are common. However, appeals of non-final orders granting extensions of time are rare, given that the grant of such orders turns on the exercise of a wide judicial case management discretion, the underlying principles of which are not controversial. The judge who heard the appeal is very experienced and, in some quarters, known for her robust style. First, the appeal of the order granting an extension of time was not only dismissed but appears to have left the judge rather unimpressed. Second, for good measure, the judge appears to have been equally dismissive of the plaintiff's application for permission to appeal.(2) Appeals in such circumstances are rarely, if ever, worth the effort.BackgroundThe original proceedings were commenced in July 2015 and the defendant filed their defence in November 2015. The current plaintiff was substituted as plaintiff in January 2021 and in June 2021 applied to amend their statement of claim that proceeded by consent (the "consent order"). Pursuant to the consent order, the defendant had until 10 September 2021 to file their amended defence, if they chose to do so. The defendant did not meet that deadline and did not apply for an extension of time until 23 September 2021 – importantly, this was the defendant's first application for time to file an amended defence. The application was not supported by an affirmation (a sworn statement), which was not compulsory but may have assisted in the circumstances, and no reason for the delay appears to be evident. On 29 September 2021, a judicial officer granted the application on a non-final basis (the "order for time"). Therefore, as things stood, the defendant had until 20 October 2021 to file their amended defence.That would usually have been the end of the matter. However, things became interesting when the plaintiff appealed the order for time to a High Court judge – such appeals are rare (although, they can be made as of right).On appeal, the Court exercised its discretion afresh (in effect, a hearing de novo). Two issues required deliberation by the Court, based on the plaintiff's appeal:Did the consent order contain an implicit sanction, such that the application for an extension of time had no effect and the only recourse open to the defendant was to seek retrospective relief from such a sanction?(3)Should an extension of time have been refused at the hearing before the judicial officer, in the absence of an explanation by the defendant of a reason for the delay?DecisionThe Court dismissed the plaintiff's appeal outright.Peremptory orders (sanction)The Court described the plaintiff's grounds of appeal as "wholly misconceived".(4) The Court explained that there are two forms of peremptory orders. First, an "unless" order with an express inbuilt sanction.(5) Second, a court order that does not have an inbuilt sanction for disobedience. The Court explained that:The latter form is only preliminary to an "unless" order and, on disobedience, a supplementary order in "unless" form setting out the sanction should be obtained.(6)The consent order did not contain a self-executing sanction and, therefore, could not be an "unless order".Court's discretion (in absence of explanation)The Court noted that orders for extensions of time involve the exercise of a wide judicial discretion and there is no absolute requirement that an adequate explanation for delay must be given before the Court can exercise its discretion to grant more time. The Court eschewed a mechanistic approach in such circumstances, taking into account all relevant matters and the underlying objectives of the court rules.In any event, the Court held that the order for time had been justified on the facts. First, while the proceedings had been commenced in 2015, the plaintiff had made substantive amendments to their statement of claim as recently as June 2021. Second, the defendant's application for time had been a first such application and there was nothing unusual in the grant of the order for time. Third, while the defendant's application for time had been made after the time for compliance had expired, retrospective extensions of time are allowed under the court rules.(7)CommentApplications for extensions of time with respect to non-milestone court dates are common. Often they proceed by consent or by court order with fixed costs (in the daily "three-minute" summons list). There is nothing unusual in an order for a first extension of time not having an inbuilt sanction – being the second type of peremptory order described by the judge. Both decisions of the Court (on appeal and the application for permission to appeal to the Court of Appeal) are useful summaries of the different types of peremptory order and the general principles that underpin the court's discretion to grant procedural extensions of time.Indeed, at face value, the plaintiff's appeal does appear to have been misconceived. For example, at one point, the plaintiff appears to have suggested that the extension of time had (in effect) denied them the right to apply for judgment in default of a defence. However, the defendant had served a defence in 2015 and, strictly speaking, did not have to file an amended defence unless they chose to do so. It so happens (albeit late) that the defendant did apply for an extension of time – although, it would have been better had the application been made before the expiry of the deadline.The plaintiff's application for permission to appeal (with respect to the dismissal of their appeal) may also have been a case of, perhaps, inviting more disappointment – this from a judge who was a robust and very experienced senior appeal court judge before her retirement and "reincarnation" (appointment to the first instance bench as a deputy judge of the High Court). Sometimes "lightning can strike twice" (in a good way) – alternatively, it may be better to stop digging when one is in a hole.For further information on this topic please contact Antony Sassi, Warren Ganesh or Adalia Chan at RPC by telephone (+852 2216 7000) or email ([email protected], [email protected]or [email protected]). The RPC website can be accessed at www.rpc.co.uk.Endnotes (1)  HKCFI 305, 24 January 2022.(2)  HKCFI 554, 22 February 2022.(3) Rules of High Court, Order 2, rule 4 ("Effect of Non-compliance").(4) Supra note 1, at para 15.(5) Supra note 1, at para 15 and Practice Direction 16.5 ("Peremptory Orders").(6) Supra note 1, at para 15.(7) Rules of the High Court, Order 3, rule 5(2) ("Extensions, etc., of time").