Kahiga v London Borough of Barnet

The same principles govern applications to extend time for notices of appeal to the Employment Appeal Tribunal and applications to extend time for internal review of a Registrar’s decision. Both concern indulgence after procedural default and require a balance between the parties’ interests and the need for expeditious disposal. An appellate court should interfere with a discretionary refusal of an extension only where an error of principle is shown. Solicitor error, ill health and the fact that the underlying claim was not determined on its merits do not, without more, establish such an error.

The appellant’s unfair dismissal and disability discrimination claims were dismissed by the Employment Tribunal after she failed to attend the listed hearing. Her subsequent attempts to appeal and seek reviews were substantially out of time. The EAT Registrar refused extensions of time and later refused permission to review those decisions. The EAT dismissed her appeals from the Registrar’s orders on 18 September 2013. The central issue before the Court of Appeal was whether the EAT judge had erred in declining to interfere with the Registrar’s discretionary decisions.

Outcome. The Court of Appeal unanimously dismissed the appeal.

1. Applicable applications. The appeal concerned two types of procedural decision: applications for extensions of time to appeal Employment Tribunal decisions and applications for extensions of time to seek internal review of earlier Registrar decisions. Both discretions arose under rule 37(1) of the Employment Tribunal Rules 1993.
2. Governing principles. Although the applications had technical differences, they raised the same question: when indulgence should be granted to a litigant who has failed to comply with a time limit. The principles in United Arab Emirates v Abdelghafar and Another [1995] ICR 65 and Jurkowska v Hlmad Ltd [2008] EWCA Civ 231 were directly applicable to appeals and applicable by analogy to internal reviews. The exercise required careful balancing of the parties’ competing interests and the need for expeditious disposal of Tribunal proceedings.
3. Appellate review. The Court would interfere with the EAT judge’s refusal to interfere with the Registrar’s discretion only if there were an error of principle in the exercise of the relevant discretion. No such error was identified.
4. Application. The Registrar and the EAT judge had the complex procedural history in mind. The former solicitors’ failures, the appellant’s medical evidence and the fact that the substantive claim had not been determined did not justify interference. The Registrar had been entitled to refuse the extensions and reviews, and the EAT judge had correctly declined to disturb those decisions.

1. Court of Appeal (Civil Division) — On 7 July 2015, dismissed the appeal from the EAT. [2015] EWCA Civ 857
2. Employment Appeal Tribunal — On 18 September 2013, dismissed appeals from the Registrar’s orders refusing extensions of time and refusing reviews.
3. Employment Tribunal — Dismissed the claims on 17 August 2011 under rule 27(5) of the applicable procedural rules. On 27 September 2011, refused an out-of-time application for review.