Badibanga v Otley College

Where an applicant seeking permission to appeal fails to provide bundles required by the Court of Appeal, and has been warned that the application may be dismissed, the court may make an unless order. The application will stand dismissed with costs if compliant bundles are not filed within the specified period. This is a procedural disposal and does not determine the underlying merits of the proposed appeal.

Mr Badibanga applied for permission to appeal and an extension of time against the Employment Appeal Tribunal’s order of 22 November 2001. The Employment Appeal Tribunal had dismissed his appeal from the Employment Tribunal sitting at Bury St Edmunds, which had held that it lacked jurisdiction to entertain his complaint of unlawful racial discrimination against Otley College.

Mr Badibanga filed his appellant’s notice on 10 January 2002 but failed to provide the supporting bundles required by the Court of Appeal. After notice that the application would be listed for dismissal, the matter came before Deputy Master di Mambro. A closely linked application concerned the proposed reinstatement of judicial review proceedings against the Employment Service.

1. The application for permission to appeal and for an extension of time was listed for dismissal because the applicant had failed to provide the bundles required by the Court of Appeal.

2. The court ordered that, unless Mr Badibanga filed within 21 days a set of bundles fully complying with the bundle leaflet entitled How to prepare a bundle of documents for the Court of Appeal, the application would stand dismissed with costs without further order.

3. The underlying employment dispute was not determined on its merits. The Employment Tribunal had decided that it lacked jurisdiction to entertain the complaint of unlawful racial discrimination, and the Employment Appeal Tribunal had concluded that there was no error of law, but those decisions were only part of the procedural background to the present order.

4. The court noted that the related judicial review application also lacked supporting bundles. It recorded the apparent link between the two applications but made the operative order in the present application conditional on compliance with the bundle requirement.

• Court of Appeal (Civil Division): On 27 March 2002, made an unless order providing that the application for permission to appeal and extension of time would stand dismissed with costs unless compliant bundles were filed within 21 days.
• Employment Appeal Tribunal: On 22 November 2001, dismissed Mr Badibanga’s appeal from the Employment Tribunal and held that there had been no error of law.
• Employment Tribunal, Bury St Edmunds: Held that it lacked jurisdiction to entertain the complaint of unlawful racial discrimination against Otley College.