Zinda v Governing Body of Barn Hill Community High

An appeal against refusal to register a fresh notice of appeal out of time requires the appellate tribunal to exercise its discretion under rule 3(8) and (9). The discretion is open and is not confined by a requirement that compliance throughout the relevant period was impossible. Litigants in person are subject to the same procedural rules as represented parties. The court may consider the merits in exceptional cases, including where an appeal has no merit, but need not do so where the extension is refused on procedural grounds. Personal commitments, travel, confusion that is not objectively justified, and failure to prioritise the deadline did not amount to exceptional circumstances.

The claimant had brought Employment Tribunal proceedings alleging race discrimination, victimisation and other matters. The tribunal dismissed his claims. He lodged notices of appeal, but the President concluded that the proposed grounds had no reasonable prospect of success. The claimant chose to serve a fresh notice under rule 3(8) and (9), rather than seek a hearing under rule 3(10).

The fresh notice had to be served by 4.00 pm on 22 March 2010 but was served two days late. The Registrar refused to extend time. The claimant appealed, relying on conflicting advice, travel, other commitments, difficulties with drafting and the merits of the underlying appeal. The central issue was whether exceptional circumstances justified registration out of time.

1. Appeal dismissed. The Registrar had erred in treating Woodward v Abbey National Plc as requiring the claimant to prove that it was impossible to comply throughout the whole 28-day period. The discretion under the applicable rule was open and unfettered by such an impossibility requirement.
2. The error did not affect the result. The claimant knew that the fresh notice had to be lodged at the Employment Appeal Tribunal within 28 days of the notification. Any advice concerning an appeal to the Court of Appeal did not prevent him from complying with that deadline. He had previously lodged notices of appeal successfully and was capable of understanding and complying with the procedural requirements.
3. The claimant had drafted almost the whole notice in Geneva and could have completed or served it in the United Kingdom before expiry. His decision to prioritise attendance at the Model United Nations and subsequent travel to the Far East was a matter of personal priority, not an exceptional reason for extending time. The time difference in Hong Kong could not assist because the deadline had already expired in the United Kingdom.
4. The rules applied equally to a litigant in person. The court could have considered the merits in an exceptional case, particularly where an appeal had no merit at all, following Aziz v Bethnal Green City Challenge. It was unnecessary to determine the merits here.
5. The claimant could alternatively have sought a hearing under rule 3(10), where amendment or redrafting might have been possible. Having chosen the fresh-notice route, he failed to establish an exceptional case. The Registrar's refusal was therefore upheld.

• Employment Tribunal: The claims for race discrimination, victimisation and related matters were dismissed. The claimant lodged notices of appeal.
• Employment Appeal Tribunal, Registrar: Registration of the fresh notice of appeal was refused because it was out of time and no exceptional reason justified an extension.
• Employment Appeal Tribunal: The appeal from the Registrar's order was dismissed. The Registrar's legal error concerning the impossibility test did not invalidate the decision.