Court of Appeal reviews correct approach to the EAT’s discretion to extend time to lodge an appeal
The Court of Appeal has today handed down judgment in three joined appeals in which the appellants had lodged a notice of appeal in time but where one of the documents necessary to institute an appeal was missing. The EAT has for many years taken a strict – even “hard-hearted” – approach to extending time for instituting an appeal. This strict approach had been applied equally where an appeal was lodged out of time in its totality and where an appeal was lodged within time but without all necessary accompanying documents. In line with this approach, extensions of time were refused by the EAT Registrar and then by EAT Judges in each of the three appeals.
In Ridley v HB Kirtley [2024] EWCA Civ 875, the Court of Appeal confirmed that this was the wrong approach to appeals which were instituted in time but defectively. The Court accepted the submission that “the broad power to extend time has become ‘encrusted by authority’ in a way which has led to the emergence of rigid sub-rules which are not justified by the broad terms of rule 37(1), or by the reasoning in the important relevant cases. As a result, some judges have tended to rely on those sub-rules for automatic answers, rather than to consider the exercise of the discretion afresh in each case, by looking closely at the facts of each case, and not relying on generalisations.”
In doing so the Court recognised that the guidance in United Arab Emirates v Abdelghafar [1995] ICR 65 is “not inflexible” and drew an important distinction between “the case of an appellant who lodges a notice of appeal and nearly all of the documents required by rule 3(1) inside the time limit, and an appellant who lodges nothing until after the time limit has passed”. The Court also noted that “a mistake could be a good reason for a delay” (contrary to the findings made by the EAT in two of the appeals) and that the EAT had given insufficient weight to the impact of ill-health as an explanation for the appellants’ errors.
The appeals will now be remitted to the EAT to reconsider the appellants’ applications for extensions of time, in light of the new, more flexible, approach identified by the Court.
Jesse Crozier and Anna Greenley acted pro bono for the first appellant, instructed by Advocate.
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