McFarlane v Patchwork Community Housing Association Ltd.

At the permission stage, an arguable case that an earlier communication contained the bare bones of a notice of appeal, with a later document supplying the grounds, can justify allowing an appeal to proceed where the formal notice was only two days late. The court may also consider that the underlying claim was struck out and the applicant has not yet had an opportunity to challenge that decision. Permission does not determine whether the earlier communication was a valid notice, whether time should be extended, or whether the substantive appeal has merit.

Ms McFarlane sought permission to appeal in McFarlane v Patchwork Community Housing Association Ltd. after Her Honour Judge McMullen QC, sitting in the Employment Appeal Tribunal, upheld the Registrar’s refusal to extend time for filing a notice of appeal against an Employment Tribunal strike-out order.

The notice appeared to have been filed two days late. Ms McFarlane relied on an earlier letter stating that she wished to appeal immediately, together with the later document said to contain the grounds of appeal. The central question was whether that argument was sufficiently arguable to warrant a full hearing.

Permission to appeal granted.

1. The Registrar had correctly treated the notice as two days out of time under the six-week period for filing an appeal from an Employment Tribunal decision. Her Honour Judge McMullen QC had upheld that decision.
2. The Court of Appeal did not determine whether the earlier letter was legally effective as a notice of appeal, whether the later document properly constituted grounds, whether time should be extended, or whether the substantive appeal had merit.
3. The letter sent on 26 February 2004, before the claim was struck out, stated that Ms McFarlane wished to notify her appeal immediately and to make the application as soon as possible. It was reasonably arguable that this letter supplied the bare bones of a notice of appeal and that the later document supplied the grounds.
4. Ms McFarlane’s distress and difficulty contacting the organisation assisting her were relevant to the explanation for the delay. More importantly, the claim had been struck out and she had not yet had an opportunity to appeal that decision.
5. Those circumstances justified giving her the opportunity to advance the argument before the full court. The appeal was to be heard on its merits in due course, with its success left open.

• Court of Appeal (Civil Division): On 17 December 2004, granted permission to appeal in McFarlane v Patchwork Community Housing Association Ltd., [2004] EWCA Civ 1840.
• Employment Appeal Tribunal: Her Honour Judge McMullen QC upheld the Registrar’s refusal to extend time for filing the notice of appeal.
• Employment Tribunal: On 31 March 2004, struck out Ms McFarlane’s claim.