Okotie v London Borough of Newham
| Jurisdiction | England & Wales |
| Judge | Lady Justice Simler,Lord Justice Underhill |
| Judgment Date | 16 October 2019 |
| Neutral Citation | [2019] EWCA Civ 2269 |
| Docket Number | Case No: A2/2018/0809(A) |
| Date | 16 October 2019 |
| Court | Court of Appeal (Civil Division) |
[2019] EWCA Civ 2269
IN THE COURT OF APPEAL (CIVIL DIVISION)
The Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
and
Lady Justice Simler
Case No: A2/2018/0809(A)
The Appellant appeared in person
Ms S King (instructed by the London Borough of Newham) appeared on behalf of the Respondent
Introduction
The appellant, Mr Okotie, brought proceedings against his former employer, the London Borough of Newham, in which he complained that he had suffered (among other things) unlawful disability discrimination and been unfairly dismissed. Those claims were resisted by his former employer. By a judgment with reasons sent to the parties on 16 March 2017, the Employment Tribunal (Employment Judge Russell sitting alone) struck out the unlawful disability discrimination claims as an abuse of process and made a deposit order of £10 as a condition of continuing to advance the ordinary unfair dismissal claim.
The Employment Appeal Tribunal Rules of Procedure 1993 (as amended) required Mr Okotie to institute any appeal if he wished to do so by serving on the EAT a notice of appeal together with certain specified documents by no later than 42 days after the date of promulgation of the ET judgment with reasons. In this case accordingly, time for appealing against the ET judgment expired at 4 pm on 27 April 2017 (see Rule 37(1)(a)).
Mr Okotie sought to appeal by a notice of appeal and the requisite accompanying documents sent by emails at 5.39 pm, 5.48 pm, 6.03 pm and 6.29 pm on 26 April 2017. The emails and attachments he sent appear to have been too large for the EAT's server, which had and probably still has a limited capacity of 10 megabytes for each email and any attachments. Delivery of the emails (or at least some of them) failed, as did delivery of a further email sent on 28 April 2017. The result was that all requisite documents were not received until after 27 April 2017. Both the Registrar and the EAT (HHJ Tucker) concluded that the appeal had not been validly lodged within the 42-day time limit for appealing. There was also a conclusion that no acceptable explanation of the reasons for delay had been provided by Mr Okotie and no extension of time was granted.
Mr Okotie now appeals with leave granted by Lewison LJ to argue that the decision to refuse an extension of time proceeded on the wrong basis and was made in error of law. Lewison LJ refused permission to argue that the appeal was filed in time.
Mr Okotie appeared before us in person, as he did below. He made his submissions succinctly and by reference to documents in the supplemental bundle, sought to persuade us that (i) the finding that the appeal was not instituted in time is irrational and therefore in error of law; and (ii) the judge's approach to the question of extending time was wrong. He submitted that the proper approach is that set out in Mitchell and Denton and, in this case, adopting that approach, this was a trivial delay that caused no significant prejudice to the respondent, so that an extension of time could and should have been granted
The Legal principles
The general principles governing the exercise of the discretion to extend time for appealing to the EAT were reviewed and confirmed by this court in Green v Mears Ltd [2018] EWCA Civ 751. Underhill LJ reviewed the case law, including in particular three cases, United Arab Emirates v Abdelghafar [1995] ICR 65, Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111 and Jurkowska v HLMAD Ltd [2008] EWCA Civ 231, and concluded that the Court of Appeal was bound by those decisions.
In United Arab Emirates v Abdelghafar [1995] ICR 65, Mummery J, then President of the EAT, gave guidance having discussed the general principles governing the exercise of the discretion to extend time. So that there is a clear understanding of the different approach to extensions of time in the EAT as compared with the ordinary civil courts, it is convenient to set that guidance out now:
“(1) The time-table set by the E AT 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 of 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.
(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 had 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.
(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. 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 delivery of post or of the misdirection of mail. That risk can be avoided by service of the Notice of Appeal well within the period. The merits of the appeal may be relevant, but are usually of little weight. It is not appropriate on an application for leave to extend time for the Tribunal to be asked to investigate in detail the strength of the appeal. Otherwise there is a danger that an application for leave will be turned into a mini-hearing of the substantive appeal. Lack of prejudice or of injustice to the successful party in the original proceedings is also a factor of little or no significance. If there is irreparable concrete prejudice, that will strengthen the opposition to the application for extension; but even if there is no prejudice, the application may still be refused.
9. Thus, the questions which must be addressed by the Appeal Tribunal, the parties and their representatives on an application for an extension are (a) What is the explanation for the default? (b) Does it provide a good excuse for the default? (c) Are there circumstances which justify the Tribunal taking the exceptional step of granting an extension of time?”
In Aziz there was express recognition by this court that Mummery J's guidance took a stricter approach than that applied by the Court of Appeal to similar extensions of time in ordinary civil appeals. Nonetheless the guidance was endorsed. In Jurkowska the Court of Appeal held that the Abdelghafar guidance was binding, but Rimer LJ did not rule out the grant of an extension even in the absence of a good excuse for the deadline having been missed. Rather, he held that even if the explanation does not amount to a good excuse, there may...
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