Peters v Sat Katar Co Ltd.

The Court of Appeal allowed an appeal against the refusal to extend time for presenting a notice of appeal to the Employment Appeal Tribunal. The court emphasised that the Appeal Tribunal has an unfettered discretion under rule 37(1) of the Employment Appeal Tribunal Rules 1993 to extend time and that that discretion must be exercised judicially, weighing all relevant factors.

The court held that the Registrar and the EAT judge erred by applying an excessively strict approach to the appellant, a litigant in person, failing to give proper weight to rule 35(3) (the presumption of delivery of documents sent by post) and to the relevance of a document having been lost in the post. Because the appellant had posted the notice of appeal well within the time limit and acted promptly once she discovered non-receipt, the court concluded that the only proper exercise of discretion was to grant an extension of time.

Background and procedural posture:

• The appellant, Ms Hazel Peters, had complained of unfair dismissal and sex discrimination. The Employment Tribunal dismissed her complaints on 25 July 2001 and refused her application for review on 11 March 2002. Under rule 3(3) of the Employment Appeal Tribunal Rules 1993 she had 42 days to institute an appeal. She posted a notice of appeal on 28 March 2002, but the Appeal Tribunal did not receive it. She faxed a copy on 23 April 2002 and applied for an extension of time on 28 April. The Registrar refused the extension on 5 July 2002. On appeal to the Employment Appeal Tribunal (His Honour Judge Peter Clark) the judge accepted that the appellant had given an honest explanation but dismissed the appeal on 26 September 2002. The Court of Appeal granted permission and heard the appeal on 20 June 2003.

Nature of the application and issues:

• The application sought an extension of time to present a notice of appeal. The principal issues were (i) the explanation for the delay, (ii) whether that explanation provided a good excuse, and (iii) whether exceptional circumstances justified extending time.

Court's reasoning:

• The court reviewed the applicable principles including the guidance in Abdelghafar and Aziz about exercising discretion to extend time and the need for a full and honest explanation. It reiterated that the discretion under rule 37(1) is unqualified and must be exercised judicially.
• The court held that rule 35(1) and rule 35(3) permit service by post and create a rebuttable presumption that documents sent by post are delivered in the ordinary course. On the facts the appellant had posted the notice well before the deadline and was entitled to rely on that presumption. The court distinguished earlier decisions critical of solicitors who failed to adopt internal checking systems: a litigant in person cannot be held to the same standard as a solicitor and the Registrar had not shown that the appellant had been given specific notice that she should check receipt by a particular date.
• The court concluded that the Registrar had applied a standard form approach without taking account of the appellant's particular circumstances, including that the notice had been lost in the post. The judge below therefore erred in law in upholding the Registrar's decision. Given the facts, the court considered the discretion could only be exercised by granting the extension.

Relief and wider comments:

• The Court of Appeal allowed the appeal, set aside the orders below and granted the extension of time. The court made observations about the usefulness of clearer guidance to litigants in the information pack supplied with tribunal decisions and the inadvisability of blanket recitals that fail to consider individual circumstances.

Appeal allowed. The Registrar and the Employment Appeal Tribunal judge applied an overly strict and formulaic approach, failing to take into account that the appellant was a litigant in person entitled to rely on the presumption in rule 35(3) that properly posted documents are delivered and that loss in the post is a relevant consideration. On the facts the discretion to extend time should have been exercised in favour of the appellant.

Appeal from the Employment Appeal Tribunal (His Honour Judge Peter Clark). Employment Tribunal decision dismissing claims: 25 July 2001. Review refused: 11 March 2002. Registrar refused extension of time: 5 July 2002. Employment Appeal Tribunal (judge) dismissed appeal: 26 September 2002. Permission to appeal to the Court of Appeal granted; Court of Appeal judgment: [2003] EWCA Civ 943 (20 June 2003).