CFP Independent Advisers Ltd. v Bayley

Permission to appeal from a refusal to extend time should be granted only where the proposed appeal has a real prospect of success. An extension is exceptional and requires a good excuse for the delay. The length of the extension and the importance of finality after expiry of the prescribed period are relevant. Appellate interference with the refusal of an extension is confined to cases involving an error of legal principle or a decision that is plainly wrong. A complaint that the underlying decision was unjust does not, without more, satisfy that threshold.

Julie Bayley succeeded before an Employment Tribunal in a claim for unlawful deduction of wages, and CFP Independent Advisers Ltd was ordered to pay her £10,122.13. The company’s Notice of Appeal was received by the Employment Appeal Tribunal 71 days out of time, contrary to the 42-day time limit. The Registrar refused an extension, and His Honour Judge Peter Clark dismissed the company’s appeal against that refusal. The company then applied to the Court of Appeal for permission to appeal, arguing that the original Tribunal decision was wrong and unjust and that the delay arose from failure to receive the appeal forms. The central issue was whether the refusal of an extension disclosed an arguable legal error or was plainly wrong.

Application refused.

1. Appellate review. A refusal to extend time is an exercise of discretion. The Court of Appeal may interfere only where the discretion was exercised through an error of legal principle or the decision was otherwise plainly wrong.
2. Extension of time. An extension is an exceptional measure. The applicant must show a good excuse for the delay. The length of the extension required and the entitlement of parties to treat decisions as final after the time limit has expired are relevant considerations.
3. Application of the principles. The Employment Appeal Tribunal was entitled to agree with the Registrar that the explanation, even if accepted, did not amount to a good excuse. The required extension was 71 days and was therefore substantial. The company’s disagreement with the original Employment Tribunal’s assessment of the commission claim did not demonstrate an error in the decision under appeal or establish exceptional circumstances justifying an extension.
4. Disposition. The Court of Appeal could not say that the Employment Appeal Tribunal’s decision was plainly wrong. The proposed appeal therefore had no real prospect of success, and permission to appeal was refused.

1. Court of Appeal (Civil Division): refused the company’s application for permission to appeal.
2. Employment Appeal Tribunal: dismissed the company’s appeal against the Registrar’s refusal to extend time.
3. Registrar of the Employment Appeal Tribunal: refused an extension because there was no good excuse for the delay or exceptional reason for granting it.
4. Employment Tribunal: found an unlawful deduction of wages and ordered CFP Independent Advisers Ltd to pay £10,122.13.