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Muschett v. London Borough of Hounslow and others


Employment Appeal Tribunal

EAT (Judge McMullen QC) 6/8/2007
The court considered four appeals against a failure to exercise discretion to extend time for lodging a notice of appeal against employment tribunal judgments and gave general guidance about how such discretion should be exercised in the light of leading authorities.
Four appellants in separate proceedings (M, K, O and T) appealed against refusals of a registrar to exercise discretion to extend time for lodging a notice of appeal against employment tribunal judgments. The appeals were heard together because they raised common issues of law. M had lodged a notice of appeal three days out of time, but the notice had not included the judgment he was appealing against, nor had there been an explanation about that omission. In seeking an extension, M had maintained that he had misplaced the judgment and overlooked to include it, and that he was a litigant in person with no prior experience of lodging appeals. It had later emerged that he was familiar with the appeal process because of a previous appeal advanced by him in different employment tribunal proceedings. An extension had been refused because he had been duplicitous. In K's case, upon learning from his solicitors that he had lost his case, he had failed to contact them and had not lodged an appeal notice. His argument in favour of an extension had been that his physical and mental health was too fragile, that his life was in crisis and that his solicitors ought to have been more proactive in appealing on his behalf. O was Nigerian and her English was too poor for her to understand the proceedings. She had notified the tribunal by letter before the expiry of the appeal deadline of her wish to appeal against the striking out of her claim, but by the time she had been able to get help from a suitable solicitor and interpreter at a law centre, the deadline had passed. T had been the respondent to employment proceedings and had been ordered in his absence to pay compensation to the claimant. The judgment had recorded its poor opinion of T in the litigation because of his failure to comply with orders or turn up for hearings. Two notices of appeal had been dismissed, the same poor opinion of his conduct having been formed.

HELD: (1) The provisions relating to appeals against decisions of employment tribunals were prescriptive and expressly provided that there was no special treatment for litigants in person. Leading authorities promulgated a number of principles, namely (a) certainty and finality of legal proceedings was in the interests of both the parties and the public, and the court had to be strict about time limits; (b) an extension of time was an indulgence and there had to be a full, honest and acceptable explanation for the delay; (c) the 42-day time limit would only be relaxed in rare and exceptional cases, and ignorance of the time limit was no excuse; (d) the length of the delay was relevant and the tribunal would be astute to any evidence of procedural abuse or intentional default; (e) compliance with time limits was of the essence; (f) an analytic approach had to be taken to different parts of the 42-day period and an excuse might not be sufficient unless it explained why a notice of appeal was not lodged throughout the entire period; (g) three questions were to be asked about a period of delay, United Arab Emirates v Abdelghafar (1995) ICR 65 EAT applied; (h) the fault of a legal adviser to issue proceedings in time was not to be visited upon the party seeking the extension; (i) litigants in person were also bound by the Practice Statement specifying which documents were to be produced on an application for extension, Dunham v Hull & East Riding Overseas Plastic Surgery (2006) EWCA Civ 557 applied. (2) M's appeal was dismissed because he had not given a frank and truthful explanation for failing to comply with the order and because, adopting an analytic approach, there were periods of time when he could have taken action, but did not. K's appeal was dismissed because the medical evidence did not support an alleged inability to lodge a notice of appeal. O's appeal was allowed because she was wholly inexperienced in dealing with such complicated matters and it had been quite right of her to seek legal advice. The law centre had failed to take a necessary step in order to meet the deadline because it had not understood the nature of the problem for reasons connected with O's language and the procedural history. Its failure could not be attributed to O. T's appeal was dismissed because he was simply presenting a rant as a delaying tactic to avoid making payment under the relevant order.

Appeals allowed in part.

Counsel for the second respondent: Robert Moretto.

[2009] ICR 424

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