Harper & Anor v Hopkins

Extensions of time for appealing to the Employment Appeal Tribunal engage a wide discretion, but the generous 42-day period means that ignorance or misunderstanding of the limit will ordinarily provide no excuse. The court must nevertheless consider the whole circumstances, including whether the case has been heard on its merits and whether an important issue or serious injustice may result from refusing an extension. A party’s illness is relevant only if it actually explains the failure to comply; it cannot do so where the party had already decided to defer filing. The same procedural requirements apply to litigants in person and represented parties.

The applicants sought permission to appeal from the dismissal by His Honour Judge McMullen QC in the Employment Appeal Tribunal of their challenge to a Registrar’s refusal to extend time for appealing an Employment Tribunal judgment. The Tribunal’s reasons for refusing a review application were sent to the applicants’ representatives on 21 November 2008. The applicants received them on 20 December, mistakenly treated that date as the start of the 42-day period, and filed their notice on 10 February 2009.

The Registrar refused an extension, and Judge McMullen upheld that decision after hearing evidence. The applicants alleged arguable merits, serious financial consequences and that they had never had a hearing on the merits. The issue was whether there was an arguable error in the exercise of the discretion and whether permission and the appeal should proceed.

1. Application adjourned. Lord Justice Rimer did not grant permission to appeal, but adjourned the renewed application to the full court on notice to the respondent. The applications to adduce new evidence and to extend time for filing the Appellant’s Notice were adjourned to the same hearing. If permission were granted, the appeal was directed to follow immediately.
2. The 42-day period under rule 3(3) of the Employment Appeal Tribunal Rules 1993 runs from the date on which the Employment Tribunal’s written reasons are sent, not the date on which they are received. Sending them to representatives whom the party has authorised to receive correspondence is equivalent to sending them to the party under regulation 61 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.
3. The applicants’ notice was therefore late. Their mistake about the starting date was ignorance or carelessness, and the intervening illness did not explain the failure because they had already decided to defer filing until the New Year. The procedural requirements apply equally to represented parties and litigants in person.
4. The discretion to extend time is not confined to asking whether the delay has been satisfactorily explained. Following United Arab Emirates v Abdelghafar, the decision-maker may consider other relevant factors, including an important issue and the fact that the party has received no hearing on the merits. Here the arguable merits, the substantial compensation order and the absence of any hearing created an intuitive concern about permanently barring the applicants, despite the apparent weakness of their explanation. Those concerns justified listing the matter before the full court, although they did not themselves establish an arguable error or require permission to appeal.

• Court of Appeal (Civil Division) [2010] EWCA Civ 742: renewed application for permission to appeal adjourned to the full court. Permission was not granted by the single Lord Justice.
• Employment Appeal Tribunal UKEATPA/0145/09/DA: appeal against the Registrar’s refusal to extend time was dismissed by His Honour Judge McMullen QC after a hearing de novo.
• Employment Appeal Tribunal Registrar: application to extend time for appealing against the Employment Tribunal judgment was refused.