Dunham v Hull & East Riding Overseas Plastic Surgery

The Employment Appeal Tribunal has a strict but discretionary power to extend the time for lodging a Notice of Appeal. A party who leaves filing until the last moment remains responsible for ensuring timely service. That responsibility does not ordinarily shift to tribunal staff following informal procedural information. An application for an exceptional extension should give a full, honest and acceptable explanation at an early stage, with particulars of relevant communications. The Court of Appeal will intervene in the EAT’s procedural discretion only for an error of principle, failure to consider a relevant matter, or consideration of an irrelevant matter.

Mrs Dunham’s claim for unfair dismissal was dismissed by an Employment Tribunal on 13 June 2005, with reasons sent on 25 July 2005. Her Notice of Appeal to the Employment Appeal Tribunal was filed on 6 September 2005, one day outside the 42-day time limit. The Deputy Registrar refused an extension, and His Honour Judge Peter Clark, sitting in the EAT, refused it again on 6 January 2006.

Mrs Dunham sought permission to appeal to the Court of Appeal. She relied on alleged telephone advice from an EAT member of staff which, she said, had dissuaded her from faxing the notice within time. The central issue was whether the EAT had erred in refusing an extension and whether the alleged advice justified intervention.

1. Application refused. There was no arguable basis for interfering with the EAT’s refusal of an extension of time.
2. The EAT has a broad discretion in procedural matters. The Court of Appeal may intervene only where the EAT has made an error of principle, failed to take a proper consideration into account, or taken an improper consideration into account. The application of EAT time limits is essentially a matter for the EAT, whose approach is stricter than that applicable to appeals to the Court of Appeal.
3. The 42-day period reflects the importance of finality, including the public interest, and extensions are granted only exceptionally. The Deputy Registrar had referred to Aziz v Bethnal Green City Challenge Company Limited [2000] IRLR 111 in applying that strict approach.
4. Responsibility for lodging a Notice of Appeal within time rests on the litigant and the litigant’s advisers. It cannot ordinarily be shifted to staff of the receiving tribunal. The alleged advice was not identified or particularised at the earlier stages, and no statement from Mrs Dunham was provided. The explanation therefore did not establish that the EAT bore responsibility for the delay.
5. An applicant seeking an exceptional extension must set out the full circumstances of the delay promptly, including when relevant communications occurred, with whom they occurred and what was said. The EAT had properly considered the application, and the Court of Appeal refused it.

• Court of Appeal (Civil Division) — On 11 April 2006, Lord Justice Pill refused the application and found no basis to interfere with the EAT’s refusal of an extension of time.
• Employment Appeal Tribunal — The Deputy Registrar refused an extension of time. His Honour Judge Peter Clark subsequently refused the application on 6 January 2006.
• Employment Tribunal — The Tribunal dismissed Mrs Dunham’s unfair-dismissal claim on 13 June 2005. Reasons were sent on 25 July 2005.