The appellant employers (H) appealed against a decision of the deputy registrar of the Employment Appeal Tribunal refusing to register their appeal out of time. In a dispute concerning an alleged transfer of an undertaking, an employment tribunal had found that there was no relevant transfer and H would therefore be liable for breaches of employment law. H instructed their solicitor to appeal against the decision, but delayed sending the full papers to him for several weeks because of personal circumstances. H's solicitor drafted an application to adduce evidence in support of the appeal and instructed counsel to draft the notice of appeal. The notice of appeal and supporting documents were emailed to the EAT on the last day of the time limit, and H's solicitor's office rang the EAT and received confirmation that the email and attachments had been received. A few days later H's solicitor received an email from the EAT stating that the appeal was not properly instituted as one page of the tribunal's reasons was missing. He supplied the missing page to the EAT 10 minutes later, and the appeal was therefore instituted three days out of time. H submitted that the default was accidental. H also argued that where the adviser was at fault, that was a relevant consideration which should have led the deputy registrar to exercise her discretion and allow the appeal to be validated.

 

HELD: (1) It was common ground that the period up to the papers being sent to H's solicitor was not exigible, and no criticism was to be made of H up until that time. H's solicitor had been quite right to seek the assistance of experienced counsel; his actions were those of a provident solicitor knowing he was coming to the EAT on a case concerning a transfer of an undertaking where a lot of money was at stake. Counsel had acted with dispatch. H's solicitor had also been correct to follow the practice direction. A detailed application for the adduction of evidence was to be made at the time of the notice of appeal (see paras 16-18 of judgment). (2) The proposition about the fault of legal advisers set out in Muschett v Hounslow LBC (2009) ICR 424 EAT continued to apply. It was a relevant, but not conclusive, factor. To that principle should be added the following: (a) errors were accidental; there were very few deliberate decisions; (b) the prejudice to the respondent was not one that was recognised in law. A putative respondent would be put to expense if an out of time appeal was allowed to be validated, but that was a natural consequence of allowing the exercise of discretion. It was not the same as suffering a prejudice in the legal sense, for example, the loss of an opportunity to adduce relevant evidence; (c) it was irrelevant that the papers had been corrected by the time they reached a judge several weeks later. That would always be the case as no papers were put before a judge until they had been through the administrative stages (paras 22-23). (3) The appeal had not been properly instituted because of the failure of H's solicitor to check that every single page had gone through the scanner. H carried the burden of that mistake. There was a system in place for checking, although it was imperfect. It was, of course, now obvious that the solicitor or his secretary should have checked through the scanning mechanism. It was not the job of the EAT to look through all of the documents and make good the faults of advisers. However, the key documents had been served; the claims, answers, notice of appeal, judgment appealed against and application for additional evidence. All but one page of the reasons were included and from those pages the essential dispute between the parties could be identified. If the discretion to allow an out of date appeal was to mean anything, it had to be available in the case of such a slight error. The failure had been explained and a reasonable excuse given (paras 21, 24). The extension of time was therefore allowed, and the appeal validated, Muschett applied, Woods v Suffolk Mental Health Partnership NHS Trust (2007) EWCA Civ 1180, Nationwide Leisure Ltd v Parnham Unreported January 1, 2009 EAT and Abiola v North Yorkshire CC Unreported May 29, 2008 EAT considered.

 

Appeal allowed