Evans v. The University of Oxford

An application under rule 3(10) to extend time is governed by an open discretion. The tribunal may consider the explanation for delay, the applicant’s ability to conduct litigation and the circumstances relied upon as an excuse. A simple mistake by an experienced litigant, without sufficient evidence of incapacity, need not justify an extension.

An interim appeal against a case-management decision may be rejected where it is academic, would obstruct the just disposal of proceedings, or has no reasonable prospect of success. The Employment Appeal Tribunal cannot grant a remedy outside its jurisdiction.

The claimant appealed against the Registrar’s refusal under rule 21 to permit a late application under rule 3(10). The underlying appeal challenged an Employment Judge’s refusal to postpone a pre-hearing review. By the time of the hearing, the review had been postponed and the claimant had therefore obtained the practical relief sought.

The claimant relied on medication, a medical appointment and unsuitable housing conditions to explain the three-day delay. She also advanced arguments under articles 3, 4, 5, 6, 8, 9, 10 and 11 of the European Convention on Human Rights.

1. Rule 3(10). The Registrar’s discretion to extend time was properly exercised. The claimant had conducted extensive litigation and accepted that she had misread the applicable 28-day period. The evidence did not establish that medication, psychoanalysis or her housing conditions prevented a timely application. The appeal under rule 21 was dismissed.
2. Alternative rule 3(7) analysis. The appeal would fail each of the relevant tests. It challenged a straightforward exercise of case-management discretion, where successful appeals are rare: Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298. The appeal was academic because the pre-hearing review had already been vacated. Continuing it would constitute an abuse of the EAT’s process and impede the just disposal of the Employment Tribunal and EAT proceedings. It also had no prospect of success.
3. The practical remedy sought, including setting aside the Employment Tribunal’s judgment and achieving a general readjustment of power between the parties, was outside the EAT’s powers on this appeal.
4. The claimant’s arguments under articles 3, 4, 5, 6, 8, 9, 10 and 11 of the European Convention on Human Rights disclosed no substance in the context of this appeal.

• Employment Tribunal: Employment Judge Byrne refused the claimant’s application to postpone a pre-hearing review. The review was subsequently vacated.
• Employment Appeal Tribunal: The Registrar rejected the appeal on the sift. The EAT dismissed the claimant’s rule 21 appeal and held, alternatively, that the proposed appeal would fail under rule 3(7).
• Court of Appeal: The judgment records that the claimant’s application for permission in related proceedings was refused.