Lawal v Foster AEB Chesterfield Law Centre

An application to reinstate a permission-to-appeal application requires consideration of whether the proposed appeal has a real prospect of success. Where the underlying decision involved an employment tribunal’s discretion to order a deposit and strike out proceedings for non-compliance, appellate intervention is justified only if the tribunal applied incorrect legal principles, took account of irrelevant matters, or failed to consider relevant matters. A procedural irregularity or alleged interference with access to justice does not, without more, demonstrate that the substantive decision would be different.

The appellant applied in person to reinstate his application for permission to appeal to the Court of Appeal. The Employment Appeal Tribunal had dismissed his appeal against employment tribunal orders requiring a £150 deposit and striking out his claim when the deposit was not paid.

Permission had previously been refused on the papers after the appellant failed to attend the listed hearing. He relied on the alleged failure to enter the striking-out order in the tribunal register, access to justice, and human rights. The issue was whether those matters gave the proposed appeal a real prospect of success.

1. The application to reinstate the permission-to-appeal application was refused.
2. The relevant question was whether the proposed appeal had a real prospect of success. The substance of the proposed appeal concerned the exercise of the employment tribunal’s discretion to require a deposit as a condition of continuing a claim and to strike out the claim when the deposit was not paid.
3. An appellate court would not interfere with that discretionary decision unless the tribunal had acted improperly. Improper exercise included applying incorrect legal principles, taking account of irrelevant factors, or failing to take account of relevant factors.
4. The alleged failure to enter the striking-out order in the register, even if established, did not show that the substantive decision was likely to be different. The same applied to the arguments based on access to justice, human rights, and ultra vires action. Those matters did not bear on whether the tribunal had improperly exercised its substantive discretion.
5. On the material before the court, there was no realistic prospect of showing that the tribunal had exercised its discretion improperly. The decision was one to which it was entitled to come, and the Court of Appeal would not interfere with it.

• Court of Appeal (Civil Division): refused the application to reinstate the application for permission to appeal.
• Employment Appeal Tribunal: on 10 September 2001, dismissed the appeal from the employment tribunal’s deposit and striking-out orders.
• Employment Tribunal: required payment of a £150 deposit as a condition of continuing the claim and struck out the claim when the deposit was not paid.