THERE IS A LEGALLY SIGNIFICANT DIFFERENCE BETWEEN AN APPEAL LODGED OUT OF TIME AND ONE LODGED IN TIME, BUT WITH DOCUMENTS MISSING: COURT OF APPEAL OBSERVATIONS ON EAT RULES

It is rare for this blog to consider anything related to employment law, let alone procedure in the Employment Tribunals.  However the Court of Appeal decision in Ridley v HB Kirtley t/a Queen’s Court Business Centre [2024] EWCA Civ 875 is interesting. The Court of Appeal draw an important distinction between an appeal that was lodged out of time and an appeal which was lodged in time,  but where certain documents were omitted.  Readers should remember that this is a decision about the particular rules relating to the EAT.  The comments do not necessarily translate directly into the Civil Procedure Rules.

“We conclude that the exercise of the discretion involves recognising a material distinction. There is a legally significant difference between the case of an appellant who lodges a notice of appeal and nearly all of the documents required by rule 3(1) inside the time limit, and an appellant who lodges nothing until after the time limit has passed”

THE ISSUES

The appellants (in three separate cases)  had each lodged appeals to the EAT within time. However certain documents were missing. The EAT told the appellants that the documents were missing and these were provided.  The EAT then stated that the appellants that they had to file an application for an extension of time. The appellants did so. Each application was dismissed.  The appellants each appealed to the Court of Appeal decision.

3. In all three cases, the appellants lodged a notice of appeal within that time limit, but part of one of the documents necessary to institute an appeal was missing. Each appellant was told by the EAT that part of the document was missing. Each then sent the document to the EAT, but after the expiry of the time limit. The EAT then required them to apply for an extension of time for appealing. In each case, the Registrar refused the application. Each appellant then appealed to a judge of the EAT. In each case, the judge decided, considering those applications afresh, to refuse to extend the time limit. The issue in each appeal to this Court is whether the EAT erred in law in not extending the time for bringing the appeal to the EAT.

THE COURT OF APPEAL ALLOWS THE APPEALS

In each case the Court of Appeal allowed the appeals. There was a major difference between a case where an appellant was out of time and one where the appeals were lodged within time but where certain documents were missing.

1. 1. The principles and guidance set out in Abdelghafar [1995] ICR 65 concerning the EAT’s approach to applications to extend the time limit for appeals have been approved by this Court on several occasions. It is perceived as being a strict, perhaps ‘hard-hearted’, approach. But it is not inflexible. It involves the exercise of a discretion in a way which is ‘judicial’, ‘even-handed’ and, above all, fair.

1. 1. We conclude that the exercise of the discretion involves recognising a material distinction. There is a legally significant difference between the case of an appellant who lodges a notice of appeal and nearly all of the documents required by rule 3(1) inside the time limit, and an appellant who lodges nothing until after the time limit has passed. The first such appellant has not fully met the requirements of rule 3(1), but has, nevertheless, substantially complied with them. How substantially depends on what document/documents is/are missing, how much of any document is missing, and how important the document is to the appeal. That appellant has also, on the face of it, complied with the time limit in rule 3(3). That difference is obviously material to the exercise of the discretion to extend time. It follows that that difference should, in principle, be reflected in the EAT’s approach to the exercise of its power to extend time. We accept that the authorities about cases in which documents were missing do not refer to this distinction, and, it follows, do not consider it whether or not it is material to the exercise of the discretion. But we see nothing in the reported decisions in this Court to suggest that we are wrong to hold that the distinction we have identified is material to the exercise of the discretion.

1. 1. The express recognition of the importance of that distinction is consistent with, and does not conflict with, the guidelines in Abdelghafar, by which we are bound. The basis of those guidelines is that the EAT takes a strict view of the importance of submitting an appeal within the time limit in rule 3(3). The three appeals with which we are concerned, however, are all cases in which an appellant has substantially complied with that rubric. Moreover, the guidelines are just that. They are not rigid rules of thumb. Rather, they are intended to guide the exercise of a very wide discretion, not to dictate the outcome of that exercise, as Mummery J made clear in Abdelghafar and as Rimer LJ repeated in Jurkowska (see paragraphs 24-28 and 53, 57 and 61-63, above).

1. 1. We consider it important to note that, before setting out the specific guidance in Abdelghafar, Mummery J was careful to identify the underlying principles. We have set them out at paragraph 24 above. The key principles are the first two (at pages 70-71):

‘(1) The grant or refusal of an extension of time is a matter of judicial discretion to be exercised, not subjectively or at whim or by rigid rule of thumb, but in a principled manner in accordance with reason and justice. The exercise of the discretion is a matter of weighing and balancing all the relevant factors which appear from the material before the appeal tribunal. The result of an exercise of a discretion is not dictated by any set factor. Discretions are not packaged, programmed responses.

(2) As Sir Thomas Bingham M.R. pointed out in Costellow v. Somerset County Council [1993] 1 W.L.R. 256, 263, time problems arise at the intersection of two principles, both salutary, neither absolute:

“The first principle is that the rules of court and the associated rules of practice, devised in the public interest to promote the expeditious dispatch of litigation, must be observed. The prescribed time limits are not targets to be aimed at or expressions of pious hope but requirements to be met …. The second principle is that a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate.”‘

Nothing has been said in the subsequent authorities in this Court to derogate from these expressions of principle. Indeed, they have been repeated and endorsed – see for example Underhill LJ in Green v Mears at paragraph 8.

1. 1. Three further points follow. First, a case in which an appeal is lodged in time but a document or part of a document is missing is very likely to be a case in which the appellant has made a mistake. The mistake is the reason for invoking the discretion conferred by rule 37(1). The fact that a mistake has been made cannot, therefore, be used as a reason for barring the exercise of that discretion (and see paragraph 152.ii., below). An understandable or reasonable mistake about the documents cannot necessarily be discounted simply on the basis that, had the litigant filed the papers earlier, the mistake might have been picked up and corrected before the expiry of the time limit. That would be to exercise the discretion in a ‘programmed’ way. Second, before it can lawfully consider the exercise of its discretion in such cases, the EAT must clearly understand the appellant’s explanation for her mistake, because, unless it does so, it cannot properly consider whether that explanation is satisfactory or not. Third, while the EAT has no duty to correct an appellant’s mistakes, when the EAT in due course tells the appellant the she has made a mistake, the delay which is relevant to the exercise of the discretion to extend time is the delay between when the EAT tells the appellant of her mistake, and when she corrects it, a point recognised by Judge 1 (see paragraph 109, above).

1. 1. Despite not expressly recognising the difference between these two types of case which we described in paragraph 144, above, the EAT has sometimes applied a more flexible approach in missing document cases. In one such decision, Fincham, time for appealing expired on 22 November 2018. The appellant appealed in time, on 20 November 2018, but one page was missing from the grounds of resistance. The EAT told him on 11 December 2018 about the missing page. He sent the missing page the next day. The Registrar held that the appeal was not properly instituted within the time limit and refused an extension of time. HHJ Auberbach allowed the appellant’s appeal. We are grateful to him for his careful review of the relevant authorities, on which we have drawn in this judgment. He referred to Woods, to Sud, and to two cases in which the EAT had extended time when parts of documents were missing. HHJ Auerbach extended time even though the missing page was relevant, because he did not consider that it was ‘material which needed to be seen in order for the EAT to appreciate the substantive basis on which’ the appellant sought to appeal (paragraph 37).

1. 1. We recognise that these observations will be seen as a departure from the very strict approach advocated in Kanapathiar. But there are two points which undermine the potential value of Kanapathiar as a precedent in the current appeals. The first is that the judgment was promulgated after the appellant had agreed not to pursue the appeal, an appeal which, in the event, the appellant lost. It was therefore, as between the parties, an unnecessary decision. Nor did it decide any material issue of law. The relevant part of the judgment is obiter. The second is that it is a decision on the Rules before rule 3(1) was amended by the insertion of what was sub-paragraph (b) at the relevant times in these appeals; a sub-paragraph which has, in turn, been removed by the more recent amendment. It is doubtful, therefore, whether it is authority at all (at the level of the EAT), and if and to the extent that it is, it is only authority about the meaning of rule 3(1) before the insertion of sub-paragraph (b). The effect of the 2005 Practice Statement is to extend, by judicial fiat, that obiter reasoning about the Rules in the form in which they were when these appeals were decided by the EAT. It follows the value of the 2005 Practice Statement, if any, derives solely from its status as a public Statement of the EAT’s practice. It is not the same as that of a Practice Direction, which has a statutory basis.

1. 1. The next issue is whether, and if so to what extent, despite these somewhat rickety foundations, Kanapathiar has been approved in a binding decision of this court. The judge in the EAT in Woods extended the approach in Kanapathiar to the version of the Rules which included paragraph 3(1)(b). This court approved his approach and dismissed an application for permission to appeal. Although Kanapathiar was cited seemingly with approval by Smith LJ in Woods, it should be noted that the decision was made on a renewed application for permission to appeal, rather than a full appeal hearing, and that the respondent was not present nor represented. There is nothing in the judgments to indicate that the decision could be cited in future. Strictly speaking, Woods is not binding on this Court.

1. 1. Jurkowska was a decision on a full appeal and therefore is binding on this Court. It is a case in which a document was missing, but that factor does not expressly feature in the reasoning. The reasoning assumes, without expressly deciding, that, if the judgment of the EAT is not lodged with an appeal which is lodged within the time limit, the appeal has not been lodged in time, and that the only issue for the court is whether time for appealing should be extended. The comments made by the members of this Court endorsing the strict approach in the Abdelghafar guidance were all made in the course of judgments in which the Court upheld a decision to allow an extension of time.

1. 1. We draw four points from the decision in Jurkowska which are relevant to the present appeals.

i. There is no rule of law which precludes a decision to extend time in favour of a person who is professionally represented and who leaves it until the very last afternoon to lodge a notice of appeal. That is not to say that it is not a factor which may be relevant to the exercise of the discretion, but that is a different point.

ii. There is no rule of law which precludes an extension of time for a person who is professionally represented and has made a ‘venial’ mistake in circumstances where she should have known better; in other words, an appellant does not always have to show a good excuse for her delay in order to get an extension of time.

iii. An appellant does not have to show that her case is ‘rare and exceptional’; rather, it will only be in rare and exceptional cases that an extension of time will be given.

iv. The guidelines in Abdelghafar are exactly that. They do not lay down rules of law, as, of course, Mummery J himself acknowledged.