The appellant challenged a decision by the tribunal made in its absence that the tribunal had jurisdiction to hear against it a claim for unfair dismissal.
Held: The tribunal had erred. Though Sengupta had been decided under common law, it remained instructive. Though the tribunal had cited the section, it had not applied it correctly. This was a case of state immunity which had to be clearly distinguished from diplomatic immunity. The fact that he had been employed by a British citizen did not mean that state immunity was not available.
Mummery P J considered the principles applied by the Courts in considering whether to grant extensions of time under the Rules of the Supreme Court. He drew attention to two intersecting principles; the first that rules [and orders] should be obeyed, and the second that a party should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate. The application of these principles is sensitive to the stage at which the application is made. Applications to extend time made at an early stage in proceedings are far more likely to receive sympathetic consideration than those made in relation to an appeal: ‘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.
(4) An extension of time is an indulgence requested from the court by a party in default. He is not entitled to an extension. He has no reasonable or legitimate expectation of receiving one. His only reasonable or legitimate expectation is that the discretion relevant to his application to extend time will be exercised judicially in accordance with established principles of what is fair and reasonable. In those circumstances, it is incumbent on the applicant for an extension of time to provide the court with 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.’
. . ‘In accordance with the general principles stated above, the Appeal Tribunal follows the guidelines for the exercise of its discretion to extend time. They are only guidelines. They do not fetter the exercise of the discretion. They are intended to ensure, as far as possible, consistency of treatment, predictability of result and the attainment of justice.(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 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 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. (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. 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.
Judges:
Mummery P J
Citations:
[1995] UKEAT 768 – 94 – 1007, [1995] ICR 65, [1995] IRLR 243
Links:
Statutes:
State Immunity Act 1978 1(2) 4 16(1)(a)
Citing:
Cited – Sengupta v Republic of India 1983
India did not appear at court to take a point on jurisdiction under the 1978 Act. The Court asked for the appointment of an amicus to assist it.
Held: The court has a duty under statute to give the effect to the immunity conferred, even though . .
See Also – United Arab Emirates v Abdelghafar and others EAT 29-Jul-1994
At a preliminary hearing, when the respondent failed to appear, the tribunal decided that it had jurisdiction to hear a case brought by the claimant against the respondent despite the 1978 Act. The respondent sought to appeal out of time.
Cited by:
Cited – Peters v Sat Katar Co Ltd (in liquidation) CA 20-Jun-2003
The claimant had sent a notice of appeal, but it was lost in the post. He now appealed a refusal of leave to apply out of time.
Held: The EAT should look at the circumstances. Here a litigant in person would not have been alerted to the need . .
Approved – Aziz v Bethnal Green City Challenge Company Limited CA 25-May-1999
The notice of appeal was served three days late. The Registrar and Morison J refused to extend time, the judge concluding that the explanation for the delay was honest and full, but not acceptable.
Held: Permission to appeal was refused. Sir . .
Cited – Military Affairs Office of the Embassy of the State of Kuwait v Caramba-Coker EAT 10-Apr-2003
The appellant challenged a finding of race discrimination against the respondent, saying the court had no jurisdiction. . .
Cited – Clancy v Cannock Chase Technical College EAT 1-Feb-1999
The claimant sought to appeal against refusal to allow him an extension of time for appeal. He miscalculated the date.
Held: Reasons given for failure to apply in time often did not excuse the failure. That applied here. ‘The time limits, it . .
Cited – Clancy v Cannock Chase Technical College CA 11-Jun-1999
The claimant appealed refusal of leave to appeal to the EAT out of time. He had miscalculated the closing date by ten days.
Held: ‘the existence of a ground of appeal does not in itself justify an extension of time. It has been held repeatedly . .
Cited – Dolega-Ossowski v Harvey Nichols EAT 20-Mar-2003
The EAT considered applications for leave to appeal out of time from both parties.
Held: ‘the principal issues in the exercise of the jurisdiction before me today. They are:
1) What is the explanation for the default?
2) Does it . .
Cited – Dolega-Ossowski v Harvey Nichols EAT 20-Mar-2003
The EAT considered applications for leave to appeal out of time from both parties.
Held: ‘the principal issues in the exercise of the jurisdiction before me today. They are:
1) What is the explanation for the default?
2) Does it . .
Cited – The Federal Republic of Nigeria v Ogbonna EAT 12-Jul-2011
nigeria_ogbonnaEAT2011
EAT JURISDICTIONAL POINTS – State immunity
A claim for compensation for psychiatric illness caused by unlawful discrimination is a claim for ‘personal injury’ within the meaning of section 5 of the State . .
Cited – Khudados v Leggate and others EAT 16-Feb-2005
Application was made to make extensive amendments to the notice of appeal.
Held: The application was refused. The EAT practice guide required an application for an amendment to be made as soon as its necessity became apparent. The applicant . .
Lists of cited by and citing cases may be incomplete.
Employment, Jurisdiction
Updated: 18 June 2022; Ref: scu.209281
