The Government of the State of Kuwait v Dr Lyazid Fenniche

Time limits in the Employment Appeal Tribunal remain important, but state immunity cases engage an exceptional consideration. Where an appeal raises a reasonably arguable question whether state immunity has been correctly applied, the appellate tribunal must consider the positive statutory and international-law duty to ensure that immunity is properly given effect. Pending appellate decisions on materially similar immunity issues may justify extending time, even after substantial delay. The discretion remains fact-sensitive and may be refused where litigation finality and prolonged serious default outweigh the immunity considerations.

The appellant sought extensions of time to bring two appeals against Registrar’s Orders. The proposed appeals concerned a preliminary judgment on state immunity and a later liability judgment. They were respectively 1,042 and 376 days out of time. A separate appeal against the remedy judgment had been brought in time and was stayed.

The proposed appeals raised issues concerning the scope of section 5 of the State Immunity Act 1978, including its relationship with sections 4 and 16 and the treatment of psychiatric injury. Related appeals were pending before the Court of Appeal and Supreme Court. The central issue was whether those circumstances justified extending time.

1. The appeals against the Registrar’s Orders were allowed. Time for instituting both substantive appeals was extended to 12 March 2024 under rule 37 of the Employment Appeal Tribunal rules.
2. The starting point is that time limits are generally enforced strictly. However, state immunity is a doctrine incorporated into domestic law by the State Immunity Act 1978. Section 1(2) imposes a positive duty on courts to give effect to immunity, even where the foreign state does not appear.
3. Following United Arab Emirates v Abdelghafar [1995] ICR 65, that duty binds appellate tribunals as well as the tribunal that heard the original proceedings. An extension may therefore be appropriate where the proposed appeal presents a reasonably arguable case that state immunity was incorrectly applied.
4. Saudi Arabia v Costantine [2025] ICR 768 confirmed that an appellate court must take notice of state immunity and take necessary steps to ensure its proper application. The related pending appeals had a material bearing on the issues proposed in these appeals.
5. The circumstances were indistinguishable from Kuwait v Mohamed [2026] IRLR 309, where an extension had properly been granted. The longer delay concerning the preliminary judgment did not alter the result. Litigation finality remained relevant, but the underlying claim was still live, the remedy appeal was in time, and there had been no prolonged and serious default of the kind identified in Costantine.
6. The appeals would be sifted to a full hearing as raising arguable points of law. A stay was not ordered, and expedition was not presently directed, although the parties could seek expedition later.

• Registrar: applications to extend time were refused by Orders dated 31 January 2025.
• Employment Appeal Tribunal: appeals allowed and time extended for instituting both substantive appeals.