England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Employment Appeal Tribunal
HH Judge Eady QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/04/2018

Lord Justice Underhill:

INTRODUCTION

1. This is an appeal against a decision of the Employment Appeal Tribunal (HH Judge Eady QC sitting alone) dismissing an appeal against an order of the Registrar refusing the Appellant an extension of time for filing his appeal. Since we are concerned only with the extension issue I need say very little about the underlying proceedings. In bare outline, the Respondent is a company which provides repair and maintenance services for social housing. Among its customers was the Welwyn Hatfield Community Trust. The Appellant was employed by it to do work at the Trust's properties. He was dismissed following an incident when he visited a Trust property out of hours in order to try to contact his estranged son, who lived there, in circumstances that were thought to constitute harassment. The Appellant brought proceedings for unfair dismissal but his claim was dismissed by an Employment Tribunal sitting at Watford (EJ Heal sitting alone). I should record, because the Appellant understandably attaches importance to this, that he was acquitted in the Magistrates' Court of an offence of harassment arising out of the same incident.
2. In the EAT the Appellant appeared in person and the Respondent was represented by an in-house solicitor. Before us the Appellant has been represented by Mr Edward Brown and the Respondent by Mr Jeffrey Jupp, both of counsel. Mr Brown appeared pro bono, and the Court is very grateful to him for his excellent submissions. Following the hearing the Appellant wrote to the Court to make some further points: a copy was sent to the Respondent but it said that it did not wish to respond. I will say something more about this at the end of this judgment.

THE RELEVANT RULES

3. The procedural rules applying in the EAT are the Employment Appeal Tribunal Rules 1993, as amended. Rule 2A sets out the overriding objective of the Rules as follows:

"(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."

4. Rule 3 is headed "Institution of Appeal". Paragraph (1) provides that an appeal should be instituted by serving on the Tribunal the documents specified under heads (a)-(f): I need not enumerate them here, but in order to understand some of the case-law it is necessary to appreciate that they include not only a notice of appeal but a number of other documents, including the judgment and written reasons of the ET and the original claim form (the "ET1"). Paragraph (3) provides for the time within which an appeal must be brought. The limit varies according to the circumstances in which the judgment and reasons were promulgated. In the present case it was, under head (a) (i), "42 days from the date on which the written reasons were sent to the parties".
5. Rule 37 (1) gives the EAT power to extend any time limits provided for. It reads:

"The time prescribed by the Rules or by order of the Appeal Tribunal for doing any act may be extended (whether it has already expired or not) or abridged, and the date appointed for any purpose may be altered, by order of the Tribunal."

Paragraph (4) provides that any application for an extension of time shall be heard as an interim application under rule 20. That Rule provides that interim applications shall be considered in the first instance by the Registrar, "who shall have regard to rule 2A (the overriding objective)". Rule 21 gives a right of appeal from any decision of the Registrar to a Judge.

THE PRINCIPLES GOVERNING THE GRANT OF AN EXTENSION

6. There has been a good deal of case-law over the years about the principles to be applied by the Registrar, or by a Judge on appeal, in deciding whether to grant an extension of time for appealing to the EAT. Those principles are now well-established, but I need to trace their development through the authorities.

Abdelghafar

7. In United Arab Emirates v Abdelghafar [1995] ICR 65 the then President of the EAT, Mummery J, discussed the principles applicable to the grant of an extension of time for appealing. At pp. 69-71 he discussed the general principles governing the exercise of the discretion to extend time: see para. 8 below. At pp. 71-72 he set out guidance applying those principles to appeals to the EAT: see para. 9.
8. The general principles. Mummery J began by referring to some earlier decisions of the National Industrial Relations Court and the EAT itself. But he also referred to two recent decisions of this Court in appeals from the High Court, observing (at p. 69H) that:

"In the procedure and practice of the appeal tribunal it is important to pay regard not only to earlier decisions of the appeal tribunal and appeals from those decisions to higher courts, but also to decisions on the procedure and practice of the Supreme Court on similar points. The appeal tribunal and the law which it applies are not sealed in separate compartments impervious to the influence of general principles laid down from time to time by other courts in relevant areas of substantive law and procedure."

He continued, at pp. 70-71:

"In the light of the guidance contained in these authorities it is possible to state, with reasonable precision, the principles which govern the exercise of the appeal tribunal's discretion to extend time and to identify those factors regarded as relevant.

(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.'

(3) The approach indicated by these two principles is modified according to the stage which the relevant proceedings have reached. If, for example, the procedural default is in relation to an interlocutory step in proceedings, such as a failure to serve a pleading or give discovery within the prescribed time limits, the court will, in the ordinary way and in the absence of special circumstances, grant an extension of time. Unless the delay has caused irreparable prejudice to the other party, justice will usually favour the action proceeding to a full trial on the merits. 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.

(4) An extension of time is an indulgence requested from the court by a party in default. He is not entitled to an extension. He has no reasonable or legitimate expectation of receiving one. His only reasonable or legitimate expectation is that the discretion relevant to his application to extend time will be exercised judicially in accordance with established principles of what is fair and reasonable. In those circumstances, it is incumbent on the applicant for an extension of time to provide the court with a full, honest and acceptable explanation of the reasons for the delay. He cannot reasonably expect the discretion to be exercised in his favour, as a defaulter, unless he provides an explanation for the default."

9. Application of principles by the EAT. This passage (pp. 71-72) reads:

"(1) The timetable set by the Employment Appeal Tribunal Rules 1993 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 of 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 limit will, therefore, only be relaxed in rare and exceptional cases where the appeal tribunal is satisfied that there is a reason which justifies departure from the time limit laid down in the Rules.

(2) The appeal 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 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.

(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.^[1] 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 appeal 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.

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?"

10. The passage which I have set out in the preceding paragraph has come to be described as "the Abdelghafar guidance". Although the final section of it summarises the guidance in the three questions (a)-(c), they are only a summary of the fuller guidance at paras. (1)-(3); and that in its turn is intended as an application, in the context of appeals to the EAT, of the wider discussion which I have set out at para. 8 above. It is clear that the approach which it prescribes is a strict one, since not only does it preclude (generally) the grant of an extension without a good excuse, even where the deadline has been missed only by a very short time, but it makes it clear that most of the common excuses for the late filing of an appeal will not be regarded as good – see para. (2).

Aziz

11. In Aziz v Bethnal Green City Challenge Co. Ltd [2000] IRLR 111 an appellant to the EAT missed the deadline for appealing by three days as a result of a mis-reading by his advisers of the date-stamp on the ET's decision. The Registrar refused an extension, and the then President, Morison J, applied what he described as "the very hard line" prescribed by Abdelghafar and dismissed an appeal from her decision, though he said that he did so "with a somewhat heavy heart". The appellant applied for permission to appeal to this Court on the express basis that the guidance in Abdelghafar was too strict, and in particular that it was stricter than that applied by the Court of Appeal itself in the case of late filing of appeals – see para. 7 (p. 112). The application was heard before the full Court on a rolled-up basis.
12. This Court refused permission to appeal. Butler-Sloss LJ delivered the leading judgment. She appears to have accepted that the Abdelghafar approach was stricter than that applied by this Court, which was summarised by reference to the judgment of Griffiths LJ in C M Van Stillevoldt BV v El Carriers Incorporated [1983] 1 WLR 207 – see para. 16 (p. 113). However, she did not believe that that difference in approach was illegitimate. At para. 19 of her judgment (p. 113) she said:

"… the Employment Appeal Tribunal has the power to regulate its own procedure under s.30(3) of the Employment Tribunals Act 1996. It is a statutory body set up under a framework of employment legislation. It has its own good reasons for requiring the parties to deal with proposed appeals expeditiously. I do not see that it is necessary for them to follow exactly the way in which the Court of Appeal deals with prospective appeals."

It is worth noting that she went on to observe that the approach of the Court of Appeal might well in future "become closer to the strict approach of the Employment Appeal Tribunal". Pill LJ agreed with Butler-Sloss LJ. Sir Christopher Staughton delivered a short concurring judgment, in which he said (p. 113):

"20. I would agree with what Mummery J said in [Abdelghafar] … that the time limit ought only to be 'relaxed in rare and exceptional cases where the appeal tribunal is satisfied that 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."

13. The importance of Aziz is not only that it endorses the guidance given by Mummery J in Abdelghafar but that it does so on the explicit basis that the approach which it takes is stricter than the approach taken by the Court of Appeal itself in similar cases. That may seem to sit a little awkwardly with Mummery J's own insistence – see para. 8 above – that general principles are transferable from one jurisdiction to another, but I do not think there is any inconsistency: Mummery J was not saying that the approaches in different jurisdictions need be identical.

Kanapathiar/Woods

14. In Kanapathiar v London Borough of Harrow [2003] UKEAT 1281/02/2502, [2003] IRLR 571, the then President of the EAT, Burton J, made it clear that the Adbelghafar guidance would thenceforth be applied also to cases in which the date for appealing was not missed altogether but in which one of the documents required by the rules was not supplied in time.
15. Such a case came before this Court on, again, a rolled-up application for permission to appeal in Woods v Suffolk Mental Health Partnership NHS Trust [2007] EWCA Civ 1180: the error was that the appellant had filed an incomplete copy of the ET1. Permission to appeal was refused. Smith LJ, with whom Arden LJ agreed, noted that the strict approach taken in Abdelghafar had been approved in Aziz and endorsed its application in cases of the Kanapathiar type. Ward LJ observed that "the denizens of the Employment Appeal Tribunal seem to be a hard-hearted lot", in whose blood "mercy flows thinly" (para. 27); but he accepted that a hard-hearted approach had been approved in Aziz and that on that basis permission should be refused.

Muschett

16. I mention for completeness the decision of the EAT in Muschett v London Borough of Hounslow UKEATPA/281/07, [2009] ICR 424, because in it HH Judge McMullen QC reviewed the case-law on extensions of time as it then stood^[2], and it is accordingly often referred to as a convenient summary, as it was by Judge Eady in this case. But it does not advance the jurisprudence in any material way.

Jurkowska

17. Jurkowska v HLMAD Ltd [2008] EWCA Civ 231, [2008] ICR 841, was an appeal from a decision of my own in the EAT granting an extension of time to an appellant (the employer) who had lodged a copy of the ET's formal judgment 33 minutes out of time (the reasons were lodged in time): I found that there had been exceptional circumstances which rendered the error venial. The respondent employee appealed to this Court, which dismissed the appeal. I should note three points which emerge from the judgments.
18. First, the Court held that the fact that the 1993 Rules had been amended since the dates of the decisions in Abdelghafar and Aziz so as to incorporate the over-riding objective (rule 2A – see para. 3 above) did not justify any departure from the Abdelghafar guidance: see in particular paras. 9-19 of the judgment of Rimer LJ (pp. 846-850).
19. Secondly, Rimer LJ, with whose judgment Hooper LJ agreed, pointed out that while the guidelines in Abdelghafar were indeed strict, and justifiably so, they did not absolutely rule out the grant of an extension even in the absence of a good excuse for the deadline having been missed. As he put it at para. 19 of his judgment (pp. 849-850):

"In the ordinary case a good explanation and excuse will have to be shown. But even if the explanation does not amount to a good excuse, there may be exceptional circumstances which anyway justify an extension. The guidelines are not rigid but they do prescribe a principled approach to an application for an extension of time. … As for [counsel's] point that the EAT should be required to take all the circumstances into account when considering applications for an extension of time for appealing, I regard the Abdelghafar principles as requiring just that."

Rimer LJ also makes the point that "exceptionality" is not as such a criterion for the grant of an extension: see para. 20 (p. 850). These passages are a corrective to the notion that the Abdelghafar guidance is wholly inflexible.

20. Thirdly, Sedley LJ, who only concurred in the result with reluctance, gave at para. 65 of his judgment (pp. 860-1) a compelling explanation of why the strictness of the guidance in Abdelghafar was justified. He said:

"This court has more than once approved the policy adopted by the Employment Appeal Tribunal for the administration of the statutory rule requiring any appeal to be instituted within 42 days of the sending out of the tribunal's reasons. It is a policy which is unforgiving, but it has never been suggested that its effect is to stifle the discretion given by the rule to enlarge time. Its purpose and effect can nevertheless fairly be said to be an equality of misery: anyone who is caught out by the 42-day time limit has, barring something quite exceptional, only himself or herself to blame for leaving it so late to institute their appeal. But one has only to consider the alternatives to see why the policy is justifiable: either any honest excuse would be capable of securing an enlargement of time, shifting the focus to how long a consequential delay might be pardoned in one case or another; or a checklist of acceptable and unacceptable excuses would develop, distinguishing between such things as transport delays, postal delays, administrative oversights, lack of funds, staff sickness, late advice and so forth. This is why judges of this court from time to time find themselves denying permission to appeal from a refusal of the Employment Appeal Tribunal to waive a delay of a few minutes or hours in the delivery of appeal papers to its registry, where they would not have hesitated to enlarge time had there been a similar lapse in filing the papers in the Civil Appeals Office."

Overview

21. It will be seen that on at least three occasions – that is, in Aziz, Woods and Jurkowska – this Court has considered whether the Abdelghafar approach is too strict, particularly since it is stricter than the approach which it itself takes to applications for extension of time for appealing; and on each occasion its application has been upheld. Subject to the issue raised in this appeal, we are bound by those decisions.^[3]

THE PROCEDURAL HISTORY

22. The Employment Judge reserved her decision following a two-day hearing in September 2013. Her Judgment and Reasons were signed on 30 September and sent to the parties the following day, 1 October. The 42-day period for instituting an appeal ran from that day and accordingly expired on 12 November. Judge Eady records in her judgment that the Judgment and Reasons were sent by second-class post and that the Appellant did not receive them until 10 October. I think that that means that the decision was delayed in the post (i.e. not simply that the Appellant did not see it immediately on delivery); but even so he was still left with over a month in which to lodge his appeal.
23. The Judgment and Reasons were sent under cover of a standard letter, which read, so far as material, as follows:

"A copy of the Employment Tribunal's judgment/reasons is enclosed. There is important information in the booklet 'The Judgment' which you should read. The booklet can be found on our website at [address].

…

If you do not have access to the internet, paper copies can be obtained by telephoning the tribunal office dealing with the claim.

The Judgment booklet explains that you may request the employment tribunal to reconsider a judgment or decision. It also explains the appeal process to the Employment Appeal Tribunal. These processes are quite different, and you will need to decide whether to follow either or both. Both are subject to strict time limits. An application for a reconsideration must be made within 14 days of the date the decision was sent to you. An application to appeal must generally be made within 42 days of the date the decision was sent to you; but there are exceptions: see the booklet [emphases in the original]."

The reference to "reconsideration" is to rule 71 of the Employment Tribunal Rules of Procedure, which gives parties the right to apply to the ET itself for a reconsideration of its decision. As the letter makes clear, this process is quite distinct from an appeal to the EAT.

24. The Appellant describes himself as "computer-illiterate" and it seems that he did not access online the Judgment booklet referred to in the letter, or ask anyone else to do so for him. Nor did he telephone the ET to ask for a copy, as the letter says can be done "if you do not have access to the internet". I should nevertheless observe that the booklet likewise confirms that reconsideration and appeal are distinct processes. Under the heading "Relationship between Application for Reconsideration and Appeal" it also says (in the version then current):

"An application for reconsideration does not change the time limit for making an appeal and you may appeal while waiting for the result of the application."

25. The booklet thus states in terms that making an application for a reconsideration does not extend the time for appealing. The letter is not quite so explicit, but it nevertheless says (a) that the two processes are "quite different" and (b) that the time for appealing runs from "the date the decision was sent to you", which clearly means the decision contained in the "judgment/reasons". It cannot fairly be interpreted as saying that the time for appealing only starts to run from when the reconsideration decision is received. But even if there were any doubt about that it would be resolved by consulting the booklet, which the letter says "you should read" because it contains "important information" and which the party is told how to obtain.
26. The Appellant decided to apply to the ET for a reconsideration. He did so on 13 October 2013. The application was refused by letter dated 30 October. He renewed his application but was again refused by letter dated 10 December 2013.
27. By the time of the second refusal (though not the first) the time limit for appealing to the EAT had expired. However, on 17 January 2014 the Appellant lodged such an appeal. Some of the documentation required by rule 3 was in fact missing and was not received until 24 January, which is accordingly the date that the appeal was formally instituted. It was thus some 73 days out of time.
28. The Appellant was notified that the appeal was out of time and was invited to apply for an extension. He did so, but by a decision of the Registrar dated 24 September 2014 his application was refused. Since, in the usual way, the appeal to the Judge was treated as a re-hearing I need not set out the Registrar's reasons.
29. The Appellant's appeal was heard by Judge Eady on 6 January 2015. The Appellant had pro bono assistance from a barrister (not Mr Brown) in drafting a skeleton argument but he was unrepresented at the hearing. He gave oral evidence on oath. He said that he had been (wrongly) advised by staff at the ET to await the outcome of his reconsideration application before lodging an appeal to the EAT; and that was the principal basis on which he sought an extension. But he also relied on various personal difficulties, as to which Judge Eady made the findings which I quote below.

THE EAT's JUDGMENT

30. Judge Eady did not accept that the Appellant was advised by ET staff that he need not appeal while the outcome of his reconsideration application was pending. Mr Brown accepts that that is a finding of fact that cannot be challenged, and I therefore need not set out her reasons. As to the other matters relied on, she found, at para. 22 of her judgment:

"I am willing … to accept that he no doubt found (and probably finds) aspects of the ET and EAT procedures daunting. I accept that this kind of process will be outside his comfort zone; it is no doubt far removed from the everyday work in which he was formerly engaged. I am also prepared to accept that he is not somebody who uses a computer … and that receiving documentation from the ET in hard copy lead to delays and meant that his time for submitting a reconsideration application after receiving the ET judgment was limited. I also accept his evidence about his personal difficulties. His wife suffers from a bipolar condition, and the claimant has been prescribed antidepressant medication for a number of years. Furthermore, 2013 was a bad year for him. Apart from the difficulties relevant to these proceedings, the Claimant's father died that year, and I am prepared to accept that all those matters – on top of the Claimant losing his job and suffering the financial consequences of that, and having to be engaged in ET proceedings – all put a great deal of stress on him."

31. At paras. 26-27 of her judgment Judge Eady made her findings as to the explanation for the delay in lodging an appeal. She said:

"26. On the basis of the claimant's evidence and the other material available, what I think happened is as follows. As he volunteered to me, the claimant obtained documentation from the EAT (about appeals) but found that daunting (the term he used in evidence); it referred to the need to identify points of law and to possible costs implications. Finding the appeal process to be a daunting prospect, I infer that the claimant considered that applying for a reconsideration of the ET judgment seem to be a more comfortable option. He was then dealing with an ET with which he had some familiarity by that stage and, no doubt, that seemed less daunting. He may well have telephoned the ET and asked whether putting in a reconsideration application impacted on the time limit for an appeal. To the extent that he says that he was advised that it had the effect of suspending the time limit for an appeal, I find that the claimant heard what he wanted to hear, not what the ET staff were actually saying.

27. In similar vein, the claimant further says that he had understood from the covering letter from the ET that he had 42 days to appeal from the 'final' Written Reasons; that is, the reasons for rejecting his second reconsideration application. I find that, again, that evidences that the claimant read what he wanted to read and interpreted the letter in the way he wanted it to be interpreted. That is certainly not what it says. The letter is clearly written and is clearly understood by most litigants. It makes clear that, where the reasons are sent out with the judgment, as in this case, time runs from the date it is sent out to the parties. Time is not extended by an application for a reconsideration."

32. At para. 28 Judge Eady pointed out that the Appellant's explanation, even if acceptable as far as it went, did not cover the whole period. He had told her in evidence that he had had advice from his local CAB on 22 December 2013 that he was out of time and would need an extension. She said that he had offered no explanation for the further delay of almost a month before the appeal was fully instituted. At paras. 29 and 30 she dealt with other points with which we are not concerned. At para. 31 she said:

"The simple point is, however, that I do not accept that the claimant has provided an explanation for his default. He has certainly not, even on his own case, provided an explanation for the entirety of the period in question. Even if he should be taken to have provided a partial explanation, it is not a good one. There are no exceptional grounds on which an extension of time should be granted in this case, and I duly dismiss the appeal."

THE APPEAL TO THIS COURT

33. The Appellant's original grounds of appeal were drafted without legal assistance and Dame Janet Smith refused permission to appeal on the papers on the basis that they disclosed no arguable grounds of appeal. However, at the hearing of his renewed application, at which he was represented by Mr Brown, the Senior President of Tribunals, Ryder LJ, gave permission to appeal. Although no new grounds were formally pleaded, the basis of Mr Brown's submissions in this Court – and, as I understand it, before Ryder LJ – was that the guidance in Abdelghafar should now be treated as superseded by the principles developed in relation to the grant of extensions of time under the Civil Procedure Rules (the so-called "Mitchell/Denton guidance"), and more particularly as regards extensions of the time limit for appeals to this Court; and that that failure was material in the circumstances of the present case.
34. I need not refer in any detail to the case-law on the Mitchell/Denton guidance. It starts with Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795, as subsequently explained in Denton v T.H. White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3926. Those cases were concerned with "relief from sanctions" in the case of non-compliance with interlocutory directions; but in R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, [2015] 1 WLR 1633, the guidance in them was confirmed as applying to extensions of the time limits for appeals – see per Moore-Bick LJ at para. 36 (pp. 2481-2). I need only quote the summary at para. 24 of the judgment of Lord Dyson MR and Vos LJ in Denton (p. 3935 F-H)), adopted by Moore-Bick LJ in Hysaj at para. 38 of his judgment (p. 2482 E-F):

"A judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the 'failure to comply with any rule, practice direction or court order' which engages rule 3.9(1) [of the CPR]. If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate 'all the circumstances of the case, so as to enable [the court] to deal justly with the application … ."

As is explained in Mitchell, the guidance was intended to produce a substantially stricter approach to applications for extensions of time, in response to what was perceived as a culture of non-compliance with the limits prescribed by the CPR. It was not initially aimed at extensions of time for appealing, and it may be debatable to what extent such a culture prevailed in that context also; but certainly the move was not in the direction of greater laxity.

35. The elements in the Mitchell/Denton guidance are, unsurprisingly, much the same as those identified in Abdelghafar; and it might at first sight be thought that either formulation should produce the same outcome in similar circumstances. But they are not expressed or structured in quite the same way, and there is at least one difference of potential significance. Denton appears to contemplate that an extension will generally be granted where the Court decides, as the first stage of its enquiry, that the non-compliance is "neither serious nor significant": it is true that it does not say that the second and third stages, which consider the reason for the non-compliance and the other circumstances, can be dispensed with altogether, but it does say that "it will usually be unnecessary to spend much time on them" (see para. 28 of the judgment of Lord Dyson MR and Vos LJ, substantially repeated at para. 38). When that approach is applied to a delay in filing an appellant's notice, it appears from Hysaj that even quite a substantial delay may not be regarded as "serious or significant", with the result that an extension may be granted without further enquiry – see para. 51 of the judgment of Moore-Bick LJ. The guidance in Abdelghafar, by contrast, generally precludes the grant of an extension unless a good reason can be shown for the default in question, however trivial^[4]. Thus on the face of it a delay for which there was no good reason would normally attract an extension under Denton/Hysaj if it was sufficiently short but would normally not do so under Abdelghafar, however short it was.
36. Having said that, I am bound to say that I am not sure that the gulf is quite as big in reality as it may seem in theory. For one thing, as Rimer LJ made clear in Jurkowska (see para. 19 above), the Abdelghafar guidance does not absolutely rule out the grant of an extension even where no good reason has been shown for non-compliance. For another, there is not yet any definitive guidance from this Court about whether short delays in filing an appellant's notice can be treated as "neither serious nor significant". In Hysaj there were very particular reasons why Moore-Bick LJ felt able to characterise the delay of 42 days in that case as not "significant"^[5]; and it seems to me arguable that in the context of the institution of an appeal (as opposed to other kinds of interlocutory deadlines) the missing of the prescribed time limit is, absent special circumstances of the kind that obtained in Hysaj, inherently both serious and significant – see para. (3) of Mummery J's discussion in Abdelghafar quoted at para. 8 above. However, for present purposes I proceed on the basis that the two approaches may indeed produce different outcomes. The question is whether that means that they need to be assimilated.
37. As to that, Mr Brown's essential submission was that the Mitchell/Denton guidance represents the most recent and sophisticated articulation of the approach which justice requires in the context of non-compliance with time limits, and specifically (in the light of Hysaj) appellate time limits, and that there is no good reason why it should not apply to appeals to the EAT. He also pointed out that it had been adopted by the Upper Tribunal in the context of appeals from the First-tier Tribunal – see R (Onowu) v First-tier Tribunal (Immigration and Asylum Chamber) [2016] UKUT 185 (IAC); and that a decision of the Upper Tribunal (Tax and Chancery Chamber) that the Mitchell/Denton guidance should not be applied in the context of VAT proceedings in the FTT was overturned by this Court in BPP Holdings Ltd v HM Revenue & Customs [2016] EWCA Civ 121, [2016] 1 WLR 1915, that decision being upheld by the Supreme Court ([2017] UKSC 55, [2017] 1 WLR 2945).
38. Well though Mr Brown developed his case, I am unable to accept it. My reasons are as follows.
39. The fundamental problem is that we are in my view bound by the decisions in Aziz, Woods and Jurkowska, which uphold the lawfulness of the Abdelghafar guidance. Mr Brown submitted that the emergence of "the Mitchell/Denton regime" as regards cases governed by the CPR undermined the authority of those decisions; he prayed in aid the passage from the judgment of Mummery J in Abdelghafar which I quote at the start of para. 8 above. But the problem with that submission is that there was equally at the time of those decisions a divergence between the approaches of the Courts and the EAT, and, as I have shown, that divergence was explicitly held to be legitimate (notwithstanding the observations by Mummery J on which Mr Brown relies – see para. 13 above). I cannot see that the fact that the approach adopted by the Courts has since been reformulated undermines that reasoning or conclusion: if it is legitimate for the approaches to diverge, that is so whatever the precise nature of the divergence. I would add that the reformulation effected by Mitchell and Denton is in the direction of greater strictness and to that extent reduces the difference from the EAT's approach: it would be odd if a difference which was acceptable when it was (comparatively) wide became unacceptable when it narrowed.
40. Even if we were not bound by the earlier cases, I would not accept Mr Brown's submission. How strict an approach should be taken to non-compliance with time limits is not a question to which one answer is necessarily better or worse than another (even assuming that it is possible to objectively calibrate degrees of strictness). A balance has to be struck between two interests which weigh on opposite sides: see the comments of Sir Thomas Bingham MR in Costellow quoted by Mummery J in the passage from Abdelghafar set out at para. 8 above. Different courts or tribunals may legitimately choose to strike the balance differently. That would be so even if all the other circumstances were identical, but in fact there are some differences between the EAT and the ordinary courts which may be relevant to how strict an approach is justified: the most obvious is that the time limit for appealing is twice as long in the EAT as it is under the CPR. Mr Brown sought to get round this point by arguing that the preferability of the Denton approach lay not so much in it being less strict but in it being more sophisticated: it allowed for a greater degree of discrimination between different cases. To the extent that that is true (which may be debatable) I do not believe that it answers the basic point: sophistication, in Mr Brown's sense, comes at a cost in terms of predictability of outcome and, again, it is up to the court or tribunal in question to strike the balance, within reasonable limits, between those two desiderata in the way that seems best to it. The EAT is, as Butler-Sloss LJ pointed out in Aziz, the master of its own procedure.
41. I do not think that Mr Brown's reference to the BPP decisions assists him. In that case HMRC had been debarred by the FTT from taking further part in the proceedings because of non-compliance with a series of procedural orders. The FTT, following the decision of the UT (Judge Sinfield) in McCarthy & Stone Developments Ltd v Her Majesty's Revenue & Customs Commissioners [2014] UKUT 197 (TCC), applied the Mitchell/Denton guidance. Its decision was overturned by the UT (Judge Bishopp), which declined to follow McCarthy & Stone; but it was restored by this Court. The essence of the reasoning of the Senior President of Tribunals, who delivered the only substantial judgment, was that the circumstances of litigation in the tax tribunals of the FTT and the UT required a similarly strict approach to compliance with procedural rules as was required in High Court litigation, and that the UT in McCarthy & Stone had accordingly been right to take the Mitchell/Denton approach: see para. 37 of his judgment (p. 1926 D-E). But he did not proceed on the basis that that guidance should be applied simply because it applied in the Courts or was inherently better. That is even clearer in the Supreme Court, which recognised that it was an important function of the UT to develop its own procedural jurisprudence and that it was not for the appellate courts to interfere with such guidance absent any positive legal error – see para. 26 of the judgment of Lord Neuberger (p. 2955 D-F). As to the relationship between such jurisprudence and that of the courts on similar issues, Lord Neuberger said at para. 23 (p. 2954 G):

"[W]hile it would be both unrealistic and undesirable for the tribunals to develop their procedural jurisprudence on any topic without paying close regard to the approach of the courts to that topic, the tribunals have different rules from the courts and sometimes require a slightly different approach to a particular procedural issue."

Mr Brown can perhaps get some help from the phrase "slightly different", but not much. The more important point is that the reasoning confirms that it is for the specialist tribunals to decide to what extent to follow the procedural jurisprudence of the courts. In my view the difference between the EAT's approach to late appeals and that taken under the CPR is just the kind of difference that Lord Neuberger contemplated.

42. A further reason why this Court should be cautious about interfering with the guidance developed by the EAT itself is that our jurisdiction is limited to England and Wales, whereas the jurisdiction of the EAT extends to the whole of Great Britain. That point was made by Lord Neuberger in BPP – see para. 23 of his judgment (p. 2954 C-G).
43. None of this means that it would not in principle be open to the EAT, if it chose, to modify its approach to the grant of extensions in the case of late appeals (or appeals of the Kanapathiar type where some of the required documentation is not supplied) so as to bring it into line with the approach taken under the CPR. It means only that there is no reason in law why it is obliged to do so.
44. I should note for completeness that Mr Jupp referred us to the decision of Langstaff J, as President of the EAT, in Harris v Academies Enterprise Trust [2014] UKEAT 97/14, [2015] ICR 617, which concerned the correct approach to be taken by ETs to cases of procedural default. He rejected a submission that they should apply the Mitchell/Denton guidance, although he acknowledged that the broad principles underlying that guidance, and the CPR more generally, were applicable in the ET also: see the careful discussion at paras. 28-40 of his judgment (pp. 625-9). I need only say that his approach seems to be in line with that which I have taken to the more specific issue before us.
45. My conclusion that Judge Eady was right not to apply the Mitchell/Denton guidance means that I need not consider the second element in Mr Brown's submission, namely that the outcome might have been different if she had done so. This involved some reference to the facts; but, as I have said, he did not submit that, if Judge Eady was right to follow the Abdelghafar guidance, there was any error of law in her application of it.
46. I should at this point return to the letter sent to the Court by the Appellant following the hearing. This explains, in clear and dignified terms, that he had been present in Court during the argument and that, while Mr Brown had ably developed "the Denton issue", there were points about the facts which he had failed to make. In particular the Appellant wanted to emphasise the delays which there had been in receipt of the original ET decision and also the decisions on his reconsideration applications, which he said truncated the time available to him for appealing to the EAT; to adduce correspondence received from the ET in 2016 about the Judgment booklet, which he says shows that he never received a copy at the time and also supports his case that the ET staff give confusing advice; and to explain, by reference to his acquittal, why he feels so deeply that the original decision of the ET was wrong. Strictly speaking, it is not open to him to make these points to the Court now; but I am prepared, in deference to his evident sincerity, to address them very briefly. The short answer is that all of them either were or could have been made to Judge Eady. It was her responsibility to decide, on the evidence before her, why the appeal was instituted so late and whether those reasons were sufficient to justify an extension. This Court cannot interfere with her assessment unless she made an error of law. There was no such error. On the contrary, she assessed his explanations carefully, covering (at least so far as they were potentially relevant) the very points that he now emphasises to us. Her conclusions were entirely reasonable; indeed in my view they were plainly right. Although I am sorry for the Appellant because of the personal circumstances which Judge Eady sets out, the fact is that he was told clearly about the time limits for an appeal (and would have been told even more clearly if he had asked for a copy of the booklet) but chose to follow a different route and did not act promptly even when that route proved unsuccessful.

CONCLUSION

47. I would dismiss this appeal.

Lord Justice Leggatt:

48. I agree.

Sir Brian Leveson P:

49. I also agree.

Note 1    It appears from the decision of this Court inAziz, discussed below, that Mummery J was here referring to the decision of Popplewell J in Duke v Prospect Training Services Ltd [1988] ICR 521.     [Back]

Note 2    Despite the date of the report Muschett pre-dates the decision of this Court inJurkowska, discussed below; and this needs to be borne in mind by tribunals treating it as a source of guidance.    [Back]

Note 3    That might, I suppose, be formally debatable in the case of Aziz andWoods, since they were technically decisions to refuse permission to appeal. However, they were decisions of the full Court after hearing argument for both parties and they are for all practical purposes binding. In any event, Jurkowska was a decision on a substantive appeal.    [Back]

Note 4    “Trivial” is the language ofMitchell. The Court in Denton preferred to ask whether the default was “serious or significant” – see para. 26 of the judgment of Lord Dyson MR and Vos LJ – but the underlying concepts are the same.     [Back]

Note 5    He did describe it as “serious in terms of its length” – see para. 51 (p. 2485B). (I would add that the dichotomy between “serious” and “significant” employed in Hysaj may not be necessary or appropriate in every case.)     [Back]