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 had not done so.
The EAT set down general guidance in dealing with such applications.
No amendment can properly be entertained unless it at least raises a point of law which gives the appeal a reasonable prospect of success at a full hearing, or where there is some other compelling reason for the appeal to be heard.
‘The following are among the matters to be taken into account in determining whether or not an amendment should be allowed.
a) Whether the applicant is in breach of the Rules or Practice Directions; in our opinion compliance with the requirement in paragraph in 2 (6) of the Practice Direction that an application for permission to amend a Notice of Appeal be made as soon as the need for amendment is known, is of considerable importance. The requirement is not simply aspirational or an expression of hope. It does not set a target but is a requirement that must be met in order to advance the efficient and speedy dispatch and conduct of appeals.
b) Any extension of time is an indulgence and the EAT is entitled to a full honest and acceptable explanation for any delay or failure to comply with the Rules or Practice Direction, as Mummery J observed in Abdelghafar.
c) The extent to which, if any, the proposed amendment if allowed would cause any delay. Clearly proposed amendments that raise a crisp point of law closely related to existing grounds of appeal, or offering limited particulars that flesh out existing grounds, are much more likely to be allowed than wholly new grounds of perversity raising issues of complex fact and requiring consideration of a volume of documents, including witness statements and notes of evidence. Such amendments if allowed are bound to cause delay and extra expense. The latter class of amendments should be contrasted with the first. In many cases in the first category the party against whom permission to amend is sought will be in no worse position than if the amended grounds had been included in the original Notice of Appeal.
d) Whether allowing the amendment will cause prejudice to the opposite party, and whether refusing the amendment will cause prejudice to the Applicant by depriving him of fairly arguable grounds of appeal. We recognise that a party cannot be prejudiced in point of law simply because an argument is raised by way of amendment that saves what would otherwise be an unsustainable appeal. We also would suggest that the prejudice caused by refusing permission to amend to an Applicant who seeks permission to amend by adding fairly arguable grounds, but who has failed in a significant way to comply with the Rules or Practice Direction, or who has delayed excessively, is likely to carry less weight than in the case of an Applicant who has not delayed and has acted in accordance with the Rules and Practice Direction.
e) In some cases it may be necessary to consider the merits of the proposed amendments, assuming they can be demonstrated to cross the appropriate thresholds we have mentioned earlier; that is to say as a general rule they must raise a point of law which gives the appeal a reasonable prospect of success at a full hearing.
f) Regard must be had to the public interest in ensuring that business in the EAT is conducted expeditiously and that its resources are used efficiently.’
Serota QC J
UKEAT/0026/04, [2005] UKEAT 0026 – 04 – 1002, [2005] IRLR 540, [2005] ICR 1013
Bailii, EAT
England and Wales
Citing:
Cited – United Arab Emirates v Abdelghafar and Another EAT 10-Jul-1995
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 . .
Cited – 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 – Cobbold v London Borough of Greenwich CA 9-Aug-1999
The tenant had sought an order against the council landlord for failure to repair her dwelling. The defendant appealed refusal of leave to amend the pleadings in anticipation of the trial, now due to start on the following day.
Held: Leave was . .
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited by:
Cited – Readman v Devon Primary Care Trust EAT 1-Sep-2011
EAT PRACTICE AND PROCEDURE – Amendment
Decision on hearing under rule 3 (10) – Observations on approach to grant of leave to amend Notice of Appeal at hearings under that rule.
The first notice of . .
Cited – Ladbrokes Racing Ltd v Traynor EAT 3-Oct-2007
ladbrokes_traynorEAT2007
Practice and Procedure: Amendment
Appeal from what was described by a Tribunal as an ‘order’ granting Claimant leave to amend in the course of the hearing on evidence in a claim for unfair dismissal. Claimant seeking to cross examine in . .
Lists of cited by and citing cases may be incomplete.
Employment
Leading Case
Updated: 31 October 2021; Ref: scu.223090