Farmer v Heart of Birmingham Teaching Primary Care Trust & Anor

An extension of time for an Employment Appeal Tribunal appeal is a judicial discretion. The applicant must provide a full, honest and acceptable explanation for the default which amounts to a good excuse. It is not necessary to prove that lodging the appeal was impossible, or not reasonably practicable, throughout the whole 42-day period.

Conduct during the whole period is relevant, but practical weight will usually fall on the period immediately before expiry. A party who leaves lodging to the last moment assumes obvious risks. An extension may nevertheless be justified where timely efforts to lodge the appeal were defeated by an unusual and unforeseeable combination of events.

The Registrar extended time by ten minutes for the claimant to lodge an appeal from an Employment Tribunal judgment. The respondents appealed from that order.

The appeal papers were complete eight minutes after the 4pm deadline. There had been an initial delay in the solicitors receiving the written reasons, followed by counsel's illness. On the final day, attempts to lodge electronically failed because the attachments exceeded the email limit and the solicitors' internet service failed. An attempted fax was sent to an incorrectly entered number.

The central issue was whether, exercising the discretion afresh, time should be extended for the late Notice of Appeal.

1. Appeal dismissed. The President exercised the discretion afresh and extended time by 30 minutes. The Notice of Appeal, complete at 4.08pm, was therefore treated as in time.

2. The applicable approach required a full, honest and acceptable explanation for the default and a good excuse. The discretion was open but had to be exercised judicially, consistently and with regard to reason, relevance, logic and authority. The fact that extensions are rare did not make exceptionality a separate criterion.

3. It was wrong to require an appellant to show that lodging was impossible, or not reasonably practicable, throughout all 42 days. Conduct during the entire period remained relevant. However, greater practical regard would usually be paid to the period immediately before the deadline. A litigant who leaves matters until late assumes the risk that a real and obvious difficulty will prevent timely lodging.

4. The claimant had given a full and honest explanation. The initial ten-day delay in the solicitors' internal post system was regrettable. Otherwise, the steps taken were relatively prompt. On the final day the solicitors began attempts to lodge with sufficient time to correct an anticipated error. Their efforts were defeated by an unusual combination of an undisclosed attachment-size limit, a prolonged internet outage, and a hotel clerk's erroneous entry of the fax number.

5. Those events were not reasonably foreseeable in combination. The case was not one in which the claimant had simply allowed time to pass and acted only at the last moment. The slight extension was consistent with the proper qualitative assessment of whether the actions taken were reasonable.

• Employment Appeal Tribunal: The respondents appealed from the Registrar's order of 6 November 2014 extending time by ten minutes. The President dismissed that appeal and exercised the discretion afresh to extend time by 30 minutes.