Miller v Lambeth Primary Care Trust

An extension of time for lodging an appeal requires a satisfactory explanation for the default and circumstances sufficiently exceptional to justify exercising the discretion in the applicant’s favour. A litigant’s dyslexia or other personal difficulty is relevant evidence, but does not automatically justify an extension.

An appellate court should interfere with a discretionary refusal to extend time only where the decision falls outside the permissible scope of discretion, in effect because it is perverse or unreasonable. Permission to appeal should be refused where the proposed appeal has no realistic prospect of success and there is no other compelling reason for it to be heard.

Following an investigation into suspected benefit fraud, Ms Miller was summarily dismissed for gross misconduct. Her employment tribunal claims for unfair dismissal, victimisation and unlawful deduction of wages were dismissed on 19 May 2010, and an existing costs order was not varied.

The time limit for appealing to the Employment Appeal Tribunal expired on 30 June 2010. Ms Miller lodged an incomplete notice on 1 July and a compliant notice with supporting documents on 2 July. The Registrar refused an extension of time, and HHJ McMullen QC dismissed her appeal against that decision on 17 December 2010.

Ms Miller renewed her application for permission to appeal to the Court of Appeal. The central issue was whether the EAT judge had exceeded his discretion by refusing an extension despite evidence concerning her dyslexia, dealings with her solicitor and the circumstances of the final days before expiry.

Application refused. The renewed application for permission to appeal had no realistic prospect of success and disclosed no other compelling reason why an appeal should be heard.

1. The principles governing extensions of time for appeals to the Employment Appeal Tribunal recognise the importance of the prescribed time limit. An extension requires a satisfactory and sufficient explanation for the default, together with circumstances sufficiently exceptional to justify an exercise of discretion.
2. The EAT judge had considered the applicant’s dyslexia, including written and oral evidence and medical assessments. He was entitled to decide that it did not sufficiently explain the delay during the period when she had taken the papers from her solicitor and was acting in person.
3. The significance of a disability is a matter for the judge assessing the evidence. It does not remove the need to explain the failure to lodge the notice in time, particularly where the applicant understands the applicable deadlines and procedures.
4. An appellate court does not substitute its own view for a discretionary decision of this kind. Intervention requires satisfaction that the decision fell outside the scope of the discretion, in effect because it was perverse or unreasonable.

The Court agreed with Sir David Keene’s assessment that the EAT judge had applied the appropriate principles, had taken account of the dyslexia and was entitled to conclude that no good reason for an extension had been shown. The renewed application for permission was therefore refused.

• Court of Appeal (Civil Division): In Miller v Lambeth Primary Care Trust, [2011] EWCA Civ 722, the renewed application for permission to appeal was refused.
• Employment Appeal Tribunal: HHJ McMullen QC dismissed the appeal against the Registrar’s refusal to extend time for lodging a notice of appeal.
• Employment tribunal: The tribunal dismissed the claims for unfair dismissal, victimisation and unlawful deduction of wages, and refused to vary the costs order.