Blitz v Vectone Group Holdings Ltd (Rev 1)

The EAT has a broader discretion to extend time for lodging a Respondent’s Answer than for instituting an appeal. The relevant considerations include the length and explanation of the delay, prejudice, and the interests of justice. A short delay causing no legal prejudice may properly be forgiven, even where the party has previously failed to comply with directions.

Expedition is exceptional and must be assessed against the practical effect on other appeals and the realistic prospects and consequences of the proposed hearing. A desire to obtain preferential treatment in a possible winding-up, based on successive hypothetical events, is insufficient. Costs will not ordinarily be ordered where an unsuccessful application was reasonably arguable and not misconceived.

The claimant appealed from a Registrar’s decisions concerning the respondent’s late Answer and the refusal to expedite the claimant’s substantive appeal. The Answer was lodged one day late, after the 4.00 pm deadline. The claimant relied on the respondent’s wider history of non-compliance and sought debarment.

The claimant also sought expedition because a winding-up petition was due to be heard and he wished to secure potential employee priority under Part XII of the Employment Rights Act 1996. The EAT considered whether the Registrar had properly exercised her discretion, whether expedition was justified, and whether either party should receive costs.

1. Respondent’s Answer. The appeal against permitting the late Answer was dismissed. The distinction identified in Slingsby v Griffith Smith Solicitors, [2009] UKEAT 0619/07, between instituting an appeal and lodging an Answer was adopted. The strict principles governing extensions for a Notice of Appeal do not apply in the same way to an Answer.
2. The extension remained discretionary and was not routine. Relevant considerations included the length of the delay, its explanation, prejudice, and the interests of justice. The one-day delay was minimal. No legal prejudice had been shown. The respondent’s Answer provided a necessary opportunity for the respondent to participate, and excluding it would have been an unjust over-reaction despite the respondent’s criticism-worthy conduct.
3. The EAT’s more relaxed approach to relief from sanctions under rule 37 applied once the appeal was within the appeal machinery, as explained in Roberts v Carling, UKEAT/0183/09/. A continuation of contract order did not necessarily mean that the claimant was an employee for all purposes, and authority was against that proposition: Dowling v Ilic, UKEAT/0836/03.
4. Expedition. The appeal on expedition was dismissed. Expedition could be ordered in a proper case, but this was not one. The claimant’s proposed advantage depended on a chain of hypothetical events, including the grant of a winding-up order and a successful substantive appeal. The EAT also had to consider its existing queue, the effect on other cases, hearing availability, the need for a three-person tribunal, and the realistic possibility that any success would result in a remittal rather than immediate relief.
5. Costs. No costs order was made. The claimant had failed in his applications, but the respondent had not acted unreasonably in defending them. The applications were reasonably arguable and not misconceived within rule 34.

• Employment Appeal Tribunal: dismissed the appeal from the Registrar’s order, allowed the respondent’s one-day extension for lodging its Answer, refused expedition, and made no order for costs.