Amirthanayagam v Insolvency Service

Permission to appeal will be granted only where the proposed appeal has a real prospect of success or there is some other compelling reason for it to be heard. An appellate court will intervene in a lower court’s exercise of discretion only for an error of legal principle, failure to consider a relevant factor, or consideration of an irrelevant factor. In applications to extend time for appealing to the Employment Appeal Tribunal, the court should consider the explanation for the delay, whether it provides a good excuse, and whether exceptional circumstances justify an extension. A very substantial delay requires a particularly compelling explanation, and prejudice caused by fading memories may be relevant.

The applicant had been dismissed by the Insolvency Service and her unfair-dismissal claim was rejected by the Employment Tribunal. She did not lodge her appeal to the Employment Appeal Tribunal until 1,334 days out of time. The Registrar refused an extension of time, and Lindsay J, President of the Employment Appeal Tribunal, dismissed her appeal against that refusal.

The applicant sought permission to appeal to the Court of Appeal, relying principally on her deteriorating health after her husband’s sudden death, medical evidence, the strength of her underlying appeal, the case’s documentation, and alleged failures by the Employment Appeal Tribunal to weigh relevant matters. The central issue was whether the President had erred in principle or otherwise exceeded the proper bounds of his discretion.

1. Application refused. The applicant had no real prospect of successfully appealing the President’s decision, and no other compelling reason justified permission.
2. Under Part 52.3 of the Civil Procedure Rules 1998, permission to appeal requires either a real prospect of success or another compelling reason why the appeal should be heard.
3. Where the appeal concerns a discretionary decision, the Court of Appeal has limited powers of intervention. It may interfere where the lower court applied incorrect legal principles, failed to consider relevant factors, or considered irrelevant factors.
4. The guidelines in United Arab Emirates v Abdelghafar [1995] ICR 65 required consideration of the explanation for the failure to appeal in time, whether it constituted a good excuse, and whether circumstances justified the exceptional grant of an extension.
5. Lindsay J had properly considered the applicant’s health, the periods during which she could have acted, the very substantial delay, the weakening of memories, and prejudice to the Insolvency Service. His conclusion fell within the proper bounds of his discretion.

The application for permission to appeal was refused.

• Court of Appeal (Civil Division): Permission to appeal refused.
• Employment Appeal Tribunal: Lindsay J, as President, dismissed the applicant’s appeal against the Registrar’s refusal on 24 January 2001 to extend time for appealing.
• Employment Appeal Tribunal Registrar: Refused an extension of time on 24 January 2001.
• Employment Tribunal: Dismissed the applicant’s unfair-dismissal claim; extended reasons were sent on 14 February 1997.