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Court of Appeal considers the all-important distinction between an appeal lodged out of time and one lodged in time, but with documents missing.
When lodging a notice of appeal within the time limit, but the documents necessary to institute an appeal are missing, could the appeal be considered in time or out of time?
In Ridley v HB Kirtley t/a Queen’s Court Business Centre [2024] EWCA Civ 875, each appellant was told by the EAT that part of the document was missing and then each sent the document to the EAT, but after the expiry of the time limit. The EAT 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 went to the Court of Appeal to decide whether the EAT erred in law in not extending the time for bringing the appeal to the EAT.
The relevant legal principles were set out, in particular United Arab Emirates v Abdelghafar [1995] ICR 65, where Mummery J previously set out guidelines on exercising discretion including that time limits should only be relaxed in ‘rare and exceptional cases’ where there was ‘a good excuse’ for default.
In addition, the relevant three provisions under the Employment Appeal Tribunal Rules 1993 were:
- Rule 3(1) stipulates which documents must be served on the EAT to 'institute' an appeal.
- Rule 3(3) provides a 42-day time limit for appealing from the ET to the EAT.
- Rule 37(1) gives the EAT an apparently wide discretion to 'alter' the time prescribed by the Rules for doing 'any act'.
In each case, the Court of Appeal allowed the appeals. The Court held 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 Court considered how the first appellant had not fully met the requirements of rule 3(1), but had, nevertheless, substantially complied with them. The question of 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. The Court discussed how that appellant had also, on the face of it, complied with the time limit in rule 3(3). The Court considered the 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.
The Court reviewed the Abdelghafar guidelines and emphasised that “they do not lay down rules of law”. They were intended to guide the exercise of a very wide discretion, not to dictate the outcome of that exercise. The Court noted in particular that a mistake could be a good reason for a delay.
