Jurkowska v Hlmad Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rimer,Lord Justice Hooper,Lord Justice Sedley |
| Judgment Date | 19 March 2008 |
| Neutral Citation | [2008] EWCA Civ 231 |
| Docket Number | Case No: A2/2007/1222 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 March 2008 |
[2008] EWCA Civ 231
Lord Justice Sedley
Lord Justice Hooper and
Lord Justice Rimer
Case No: A2/2007/1222
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(Mr Justice Underhill)
UKEATPA/1657/06/JOJ
Mr Sean Pettit (instructed by Alison Trent & Co) for the Appellant
Mr Raoul Downey (instructed by DLA Piper UK LLP) for the Respondent
Hearing date: 16January2008
Introduction
This is an appeal by Miss Karolina Jurkowska against a decision of the Employment Appeal Tribunal (“the EAT”) dated 17 May 2007. She is the claimant in a disability discrimination claim that she commenced against her former employer, Hlmad Limited (“the employer”), in the London Central Employment Tribunal (“the ET”) in July 2006. Her employment had terminated in January 2006. The circumstances in which the claim came to be made gave rise to various preliminary issues including one as to whether the ET had jurisdiction to entertain her claim. These issues were argued before the Chairman of the ET at a pre-hearing review on 25 September 2006. The outcome was that the Chairman held that the ET did have jurisdiction to entertain the claim, which was allowed to proceed.
The employer was dissatisfied with that decision and wanted to challenge it before the EAT. The time for instituting an appeal at the EAT expired on 17 November 2006. The due institution of an appeal required the service on the EAT of various documents, one of which was served 33 minutes late. That meant that it was treated as served on the next working day, 20 November 2006, and it is agreed that it followed that the notice of appeal was served out of time. The EAT treated the late submission of the extra document as an application for an extension of time for appealing. The claimant opposed an extension but the Registrar allowed it on 30 January 2007. The claimant appealed against her decision but Underhill J, sitting alone, upheld it. He treated the appeal before him as in the nature of a re-hearing, and there is no challenge to that. The claimant's appeal to this court, brought with the permission of Sir Henry Brooke, is against his decision. Her case is that, in allowing the extension, the judge misapplied the applicable principles.
United Arab Emirates v. Abdelghafar
As the employer's temporal shortcoming was so modest, it might perhaps be thought that there would be a sufficient discretion in the EAT to grant an uncontroversial extension of time and that there would be no scope for the matter to have found its way to this court. The position is not, however, quite as simple as that because the EAT has developed relatively strict principles with regard to granting extensions of time for appealing and the issue is whether the judge had proper regard to them. The key authority is United Arab Emirates v. Abdelghafar [1995] IRLR 243, a decision of Mummery J (as he then was), as President of the EAT. Then, as now, the period within which an appeal to the EAT might be made was 42 days. The EAT's jurisdiction to extend time limits arises under rule 37(1) of the Employment Appeal Tribunal Rules 1993 (“the EAT Rules”) and Mummery J identified the principles by reference to which the discretion under that rule should be exercised.
Mummery J started by observing, in [14], that “Those responsible for making the Rules have decided that 42 days is ample time for a disappointed party to take advice on appealing, to decide whether or not to appeal, and to prepare and serve the necessary documents.” After referring to various authorities, he identified, at [22] to [25], four guiding principles applying to the procedure of civil courts generally. First, the grant or refusal of an extension is a matter of discretion to be exercised in a principled manner in accordance with reason and justice. It requires a weighing and balancing of all the relevant factors appearing from the material before the tribunal. Second, and drawing on what Sir Thomas Bingham MR had said in Costellow v. Somerset County Council [1993] 1 All ER 952, that time problems arise at the intersection of two principles: (i) that rules of court and practice that are devised in the public interest to promote the expeditious dispatch of litigation must be observed, and that prescribed time limits are not targets to be aimed at; and (ii) a claimant should not ordinarily be denied the adjudication of his claim because of a procedural default unless the default causes prejudice to his opponent which cannot be compensated by costs. Third, that the approach indicated by those two principles is modified according to the stage the proceedings have reached. Ordinarily, and absent special circumstances, an extension of time for performing an interlocutory step in the proceedings (for example, serving a statement of case) will usually be granted. But:
“The approach is different, however, if the procedural default as to time relates to an appeal against a decision on the merits by the court or tribunal of first instance. The party aggrieved by that decision has had a trial to hear and determine his case. If he is dissatisfied with the result he should act promptly. The grounds for extending his time are not as strong as where he has not yet had a trial. The interests of the parties and the public in certainty and finality of legal proceedings make the court more strict about time limits on appeals. An extension may be refused, even though the default in observing the time limit has not caused prejudice to the party successful in the original proceedings.”
Fourth, an extension of time is an indulgence requested by a party in default. He is not entitled to an extension or to any reasonable or legitimate expectation of receiving one. He is at most entitled to expect that the discretion relevant to his application will be exercised judicially in accordance with established principles of what is fair and reasonable. It is therefore incumbent upon him to provide a “full, honest and acceptable explanation of the reasons for the delay. He cannot reasonably expect the discretion to be exercised in his favour, as a defaulter, unless he provides an explanation for the default.”
Having identified these four principles, Mummery J then explained, at [27] to [30], the guidelines to be followed by the EAT in considering whether to exercise its discretion to extend time for appealing. He first, however, made it clear, at [26], that they were indeed only guidelines and that they did not fetter the exercise of the discretion. I will quote them in full:
“27 (1) The timetable set by the EAT Rules should be observed by the parties and their lay and professional advisers. Although more sympathy may be shown to a party who is unrepresented, as many are, there is no excuse, even in the case of an unrepresented party, for ignorance of the time limit or the importance of compliance. When parties are notified of the reasons for the industrial tribunal's decision they are informed of the 42-day time limit for appealing. The limits will, therefore, only be relaxed in rare and exceptional cases where the tribunal is satisfied that there is a reason which justifies departure from the time limits laid down in the Rules.
28 (2) The tribunal's discretion will not be exercised, unless the appellant provides the Tribunal with a full and honest explanation of the reason for non-compliance. If the explanation satisfies the tribunal that there is a good excuse for the default, an extension of time may be granted. Experience has shown that most of the explanations offered do not in fact excuse the delay which has occurred. For example, the following explanations have been rejected by the Appeal Tribunal as excuses for delay: ignorance of the time limit; oversight of the passing of the limit, for example, by a solicitor under pressure of work; prior notification to the Employment Appeal Tribunal or the Industrial Tribunal or to the successful party of the intention to appeal; the existence of pending applications for review of the decision or for remedies; delay in the processing of an application for legal aid or of an application for advice or support from elsewhere, such as the Equal Opportunities Commission or the Commission for Racial Equality. It is always possible, in cases where there may be unavoidable delay, for an extension to be agreed between the parties or granted by order of the Appeal Tribunal before the period has expired. Alternatively, a Notice of Appeal may be served in order to comply with the Rules, with a covering letter saying that it may be necessary to apply to amend it later.
29 (3) If an explanation for the delay is offered, other factors may come into play in the exercise of the discretion. It is, of course, impossible to make an exhaustive list of factors. The Appeal Tribunal will be astute to detect any evidence of procedural abuse, questionable tactics or intentional default. The Tribunal will look at the length of the delay which has occurred, though it may refuse to grant an extension even where the delay is very short. Extensions have been refused, even where the notice of appeal was served only one day out of time. [That was a reference to the decision of Popplewell J in Duke v. Prospect Training Services Ltd [1989] IRLR 196]. Parties who have decided to appeal are also strongly advised not to leave service of the Notice of Appeal until the last few days of the 42-day period. If they do, they run the risk of delay in the...
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...Emirates v Abdelghafar [1995] IRLR 243, a decision which I summarised and quoted from in my judgment in this court's decision in Jurkowska v Hlmad Limited [2008] EWCA Civ 231. 7 The established principles are that the very generous six-week time limit for appeals to the EAT is strictly appl......
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