Sia Daramy v The London Borough of Tower Hamlets & Ors

For rule 37(5), whether a document-submission error is minor is assessed by the extent of compliance with rule 3(1), not by the importance of the omitted document or its effect on the appeal. A timely notice accompanied by most required documents may therefore substantially comply. The EAT retains a discretion to extend time after the error is rectified. Merits are generally irrelevant to an extension application, but may be considered where they are so strong or weak that the summary judgment test would be satisfied. The court may likewise assess whether an appeal is academic. Where revival depends on multiple substantial hurdles with no real prospect of success, the appeal is academic.

Ms Daramy sought to appeal from an Employment Tribunal case management order refusing to allow additional respondents to be added to existing claims. She lodged her notice of appeal within time and served the written reasons, but omitted the written record of the order. The order was supplied later, after the EAT raised the omission. The registrar refused an extension, and Judge Susan Walker KC dismissed the appeal.

By the time of the EAT hearing, the underlying claims had been dismissed for nonattendance. The Court of Appeal had to decide whether the omission was a minor error under rule 37(5), and whether any extension would be futile because the proposed appeal was academic.

Appeal dismissed. Lord Justice Lewison gave the judgment, with Lord Justice Bean agreeing. Permission to appeal was granted on ground one but refused on ground three; the refusal on ground three meant that the substantive appeal on ground one necessarily failed because the underlying appeal was academic.

1. Meaning of minor error. The Court applied the Court of Appeal’s decision in Melki v Bouygues E and S Contracting UK Ltd [2025] EWCA Civ 585; [2025] ICR 1384. The question under rule 37(5) is whether the error was minor in complying with rule 3(1). It is assessed by the extent of compliance, rather than by the importance of the omitted document or its effect on the progress of the appeal. The earlier EAT approach in Melki v Bouygues E and S Contracting UK Ltd [2024] EAT 36, followed in Hewer v HCT Group Ltd [2024] EAT 133 and AB v University of East London [2024] EAT 157, applied the wrong threshold. The Court gave no exhaustive definition of minor error, leaving the question to be decided case by case.
2. Application to the documents. Ms Daramy lodged her notice and ten documents within time, including the written reasons. The omission of the written record of the order constituted substantial compliance. The decision could be understood from the reasons, and the omission was promptly rectified once the distinction between a judgment and an order became clear. The Court therefore held that the omission was, in principle, a minor error within rule 37(5).
3. Fresh discretion and academicity. Because the EAT had approached the application through rule 37(1), the Court of Appeal had to exercise the rule 37(5) discretion afresh. The issue at that stage was only whether Ms Daramy could ask the EAT to consider the extension application. An extension would not determine the merits or bypass the sift and any rule 3(10) hearing. Although merits are generally irrelevant to an extension application, they may be considered where the summary judgment test would be met and the opposing party had sufficient advance notice. The same principle applies to academicity.
4. Contingent benefit. The Court was entitled to assess whether the contingencies needed to revive the underlying claims had a real prospect of occurring. Those contingencies included further extensions, permission hearings, amendment of grounds, an arguable error of law and success on a substantive appeal. They were substantial hurdles, and the prospect of overcoming all of them was fanciful. The appeal was therefore academic. Permission on ground three was refused, and the appeal was dismissed.

• Court of Appeal (Civil Division) — On 16 December 2025, the Court dismissed the appeal. It granted permission on ground one, refused permission on ground three, and held that the substantive appeal was academic.
• Employment Appeal Tribunal — On 23 January 2025, Judge Susan Walker KC dismissed Ms Daramy’s appeal against the registrar’s refusal to extend time for appealing the Employment Tribunal’s case management order.
• Employment Tribunal — EJ Jones made the case management order on 4 October 2022, with written reasons sent on 25 October 2022. EJ Allen KC later dismissed the relevant claims for nonattendance; that judgment was sent on 12 July 2024.