COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(Mr Justice Underhill)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HOOPER
LORD JUSTICE RIMER
| MISS KAROLINA JURKOWSKA
|- and -
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Mr Raoul Downey (instructed by DLA Piper UK LLP) for the Respondent
Hearing date : 16 January 2008
Crown Copyright ©
Lord Justice Rimer :
United Arab Emirates v. Abdelghafar
"The approach is different, however, if the procedural default as to time relates to an appeal against a decision on the merits by the court or tribunal of first instance. The party aggrieved by that decision has had a trial to hear and determine his case. If he is dissatisfied with the result he should act promptly. The grounds for extending his time are not as strong as where he has not yet had a trial. The interests of the parties and the public in certainty and finality of legal proceedings make the court more strict about time limits on appeals. An extension may be refused, even though the default in observing the time limit has not caused prejudice to the party successful in the original proceedings."
"27 (1) The timetable set by the EAT Rules should be observed by the parties and their lay and professional advisers. Although more sympathy may be shown to a party who is unrepresented, as many are, there is no excuse, even in the case of an unrepresented party, for ignorance of the time limit or the importance of compliance. When parties are notified of the reasons for the industrial tribunal's decision they are informed of the 42-day time limit for appealing. The limits will, therefore, only be relaxed in rare and exceptional cases where the tribunal is satisfied that there is a reason which justifies departure from the time limits laid down in the Rules.
28 (2) The tribunal's discretion will not be exercised, unless the appellant provides the Tribunal with a full and honest explanation of the reason for non-compliance. If the explanation satisfies the tribunal that there is a good excuse for the default, an extension of time may be granted. Experience has shown that most of the explanations offered do not in fact excuse the delay which has occurred. For example, the following explanations have been rejected by the Appeal Tribunal as excuses for delay: ignorance of the time limit; oversight of the passing of the limit, for example, by a solicitor under pressure of work; prior notification to the Employment Appeal Tribunal or the Industrial Tribunal or to the successful party of the intention to appeal; the existence of pending applications for review of the decision or for remedies; delay in the processing of an application for legal aid or of an application for advice or support from elsewhere, such as the Equal Opportunities Commission or the Commission for Racial Equality. It is always possible, in cases where there may be unavoidable delay, for an extension to be agreed between the parties or granted by order of the Appeal Tribunal before the period has expired. Alternatively, a Notice of Appeal may be served in order to comply with the Rules, with a covering letter saying that it may be necessary to apply to amend it later.
29 (3) If an explanation for the delay is offered, other factors may come into play in the exercise of the discretion. It is, of course, impossible to make an exhaustive list of factors. The Appeal Tribunal will be astute to detect any evidence of procedural abuse, questionable tactics or intentional default. The Tribunal will look at the length of the delay which has occurred, though it may refuse to grant an extension even where the delay is very short. Extensions have been refused, even where the notice of appeal was served only one day out of time. [That was a reference to the decision of Popplewell J in Duke v. Prospect Training Services Ltd  IRLR 196]. Parties who have decided to appeal are also strongly advised not to leave service of the Notice of Appeal until the last few days of the 42-day period. If they do, they run the risk of delay in the delivery of post or of the misdirection of mail. That risk can be avoided by service of the Notice of Appeal well within the period. The merits of the appeal may be relevant, but are usually of little weight. It is not appropriate on an application for leave to extend time for the Tribunal to be asked to investigate in detail the strength of the appeal. Otherwise there is a danger that an application for leave will be turned into a mini-hearing of the substantive appeal. Lack of prejudice or of injustice to the successful party in the original proceedings is also a factor of little or no significance. If there is irreparable concrete prejudice, that will strengthen the opposition to the application for extension; but even if there is no prejudice, the application may still be refused.
30. Thus, the questions which must be addressed by the Appeal Tribunal, the parties and their representatives on an application for an extension are: (a) What is the explanation for the default? (b) Does it provide a good excuse for the default? (c) Are there circumstances which justify the Tribunal taking the exceptional step of granting an extension of time?"
"20 I would agree with what Mummery J said in the United Arab Emirates case at p. 246 that the time limit ought only to be 'relaxed in rare and exceptional cases in which there is a reason which justifies departure from the time limit laid down in the Rules.'
21 That seems to me a very proper rule for the Employment Appeal Tribunal to adopt."
"2A—(1) The overriding objective of these Rules is to enable the Appeal Tribunal to deal with cases justly.
(2) Dealing with a case justly includes, so far as practicable –
(a) ensuring that the parties are on an equal footing;
(b) dealing with the case in ways which are proportionate to the importance and complexity of the issues;
(c) ensuring that it is dealt with expeditiously and fairly; and
(d) saving expense.
(3) The parties shall assist the Appeal Tribunal to further the overriding objective."
"In determining whether to extend the time for appealing, particular attention will be paid to whether any good excuse for the delay has been shown and to the guidance contained in the decisions of the EAT and the Court of Appeal, as summarised in United Arab Emirates v. Abdelghafar  ICR 65 and Aziz v. Bethnal Green City Challenge Co Ltd  IRLR 111."
"… it cannot be consonant with the overriding objective of dealing with cases 'justly', or with the requirement of proportionality, for the rules about time limits to be applied with what he colourfully described as the 'mechanistic venom' with which they were applied in this case."
"13. Neither Mr Livesey nor Mr Maxwell was able to refer me to any decision in the past 2 ½ years in which the effect of the introduction of rule 2A on the principles governing the extension of time for appealing has been considered, although there must have been very many cases in which Abdelghafar has been applied over that period. In at least one reported case, Woodward v. Abbey National Plc  IRLR 782, if it had been the position that the overriding objective justified a more relaxed approach to the extension of time limits than had previously been the case one might have expected that the President would have adverted to it. Mr Maxwell also points out that the 2004 Practice Direction, which was reissued shortly after the changes to the Rules introduced in 2004, continues to treat Abdelghafar as authoritative. Neither of those points is in any way decisive, but they do suggest that Mr Livesey's submission has to be approached with some caution.
14. In my view Mr Livesey's submission on this point is not well-founded. As he was constrained to admit, the requirements of justice and proportionality cannot be taken to preclude the application of reasonable time limits, even where the margin by which the limit may have been missed in any particular case is short. Procedural rules are essential to any fair procedural system. There will always be what appear to be hard cases where the limits fall to be applied after what appears only to be a minor breach or where the prejudice to the other party is small, but that does not render their application unjust. Once that is recognised, it seems to me frankly meaningless to say that justice now requires that such rules be applied 'less strictly' than they were one were or would otherwise be. The distinctions involved have no measurable content. If the approach adopted in Abdelghafar was consonant with justice in 2000 when the Court of Appeal in Aziz approved it, I cannot see that it has ceased to be so now simply because of the explicit recognition of the overriding objective introduced in 2004."
The facts and applicable rules
"29. Form and content of judgments
(1) When judgment is reserved a written judgment shall be sent to the parties as soon as practicable. All judgments (whether issued orally or in writing) shall be recorded in writing and signed by the chairman.
(2) The Secretary shall provide a copy of the judgment to each of the parties and, where the proceedings were referred to the tribunal by a court, to that court. The Secretary shall include guidance to the parties on how the judgment may be reviewed or appealed."
"61. Notices, etc
(1) Any notice given or document sent under these rules shall (unless a chairman or tribunal orders otherwise) be in writing and may be given or sent –
(a) by post;
(b) by fax or other means of electronic communication; or
(c) by personal delivery ….
(4) All notices and documents required or authorised by these rules to be sent or given to any person listed below may be sent or delivered at
(h) in the case of a notice or document directed to a party –
(i) the address specified in the claim or response to which notices and documents are to be sent, or in a notice under paragraph (5); or
(ii) if no such address has been specified, or if a notice sent to such an address has been returned …
and a notice or document sent or given to the authorised representative of a party shall be taken to have been sent or given to that party."
"in the case of an appeal from a judgment of an employment tribunal a copy of the written record of the judgment of the employment tribunal which is subject to appeal and the written reasons for the judgment, or an explanation as to why written reasons are not included;" (my emphasis)
"5. Copies of –
(a) the written record of the employment tribunal's judgment, decision or order and the written reasons of the employment tribunal;
(b) the claim (ET1)
(c) the response (ET3)
are attached to this notice."
The judgment below
"… see nothing surprising in a firm of solicitors, even (perhaps especially) a firm of solicitors experienced in employment law, expecting that any formal decision of the Tribunal would be 'sent to the parties' in the natural sense of that phrase, i.e. that it would be delivered by post to the address specified in the ET1 or the ET3."
"I therefore regard DLA Piper's failure to appreciate that they had failed to include a judgment with the appeal documents as pardonable and as representing the sort of exceptional circumstance which ought to attract the exercise of a discretion to extend where the error was promptly rectified as soon as brought to their attention. That is so in my judgment even though they had waited until the last day to institute their appeal."
"First, Mr Downey sought to explain, and to some extent to justify, why his clients and those instructing him had left it so late to institute the appeal in time. Some of what he said was controversial, though I think it is fair to say at least that it does not appear that this was a case of wanton or negligent delay. But I have not thought it necessary to weigh those reasons for the purpose of this judgment. Although the cases rightly emphasise that the courts will not be tender towards those who leave it to the last minute to make applications which then turn out to be deficient for some technical reason, they do not go so far as to say that in a proper case an extension can never be granted where the appeal has been instituted on the last day; and for the reasons which I have given, I regard this as a proper case."
Discussion and conclusion
Lord Justice Hooper :
"Every interim application made to the Appeal Tribunal shall be considered in the first place by the Registrar who shall have regard to rule 2A (the overriding objective) ...
There is, in my judgment, no scope for commissioning the rule 2A overriding objective into playing some additional role when it comes to the consideration of an extension of time for appealing. Abdelghafar tells the court all it needs to know in order to deal with an extension application justly.
Lack of prejudice or of injustice to the successful party in the original proceedings is also a factor of little or no significance.
Lord Justice Sedley :