Kwamin v Abbey National Plc; Birminingham City Council v Mtize; Martin v London Borough of Southwark; Connex South Eastern Ltd vBangs: EAT 9 Feb 2004

EAT Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke.
Four cases of delay in promulgation of ET decisions. Three allowed (7.5 months, 12 months, 14.5 months) and one dismissed (4 months). Delay does not necessarily lead to rehearing (that in itself is bound to compound the delay and injustice). Test is whether decision (or part of it) rendered unsafe by delay: inspection of Decision for errors will not pay the usual deference to the decision of the Industrial jury.
Mtize: only (surviving) claim for victimisation remitted: Connex: all three discrimination claims remitted: Kwamin: one of victimisation claims remitted with cross-appeal issue of extension of time: Martin: dismissed.
The EAT gave guidance on steps to be taken after a delay in handing down a judgment. Burton J said: ‘The Appellant will need to invite the appellate court to examine the delayed judgment for any sign of error due to faulty recollection. The party impugning a judgment will need to show a material error or omission (if only one, then it would need to be the more significant) or a series of material errors or omissions. Material in this context does not mean material in the sense of an independent ground of appeal i.e. necessarily central to the decision and indicating an error of law or such error or errors of fact as to amount to perversity, but material in the sense that, taken separately or together, it or they show a real risk that there has been a failure of recollection, so as to establish that the decision is unsafe by virtue of the delay.
Such causation is essential. The appeal must not be allowed, just because of the judgment being a delayed one, to degenerate into an impermissible appeal based upon an alleged error or errors of fact, as a result of what Lord Scott called ‘trawling’ through the judgment. It plainly should not open the door, of itself, to allowing a second bite at the cherry, or certainly to a remission to the employment tribunal for the purpose of allowing a better job to be done by the losing party, second time around. We are satisfied, notwithstanding Lord Scott’s use of the words ‘probably or even possibly’, that, given the consequence for the parties of setting aside the judgment, the appeal tribunal must be satisfied on the balance of probabilities that the unsafeness is due to the delay. If the unsafeness of the Decision due to the delay is established, then that is an independent ground of appeal, and the delay will have infected and rendered unsafe one or more of the bases in law for the tribunal’s decision. The error or errors must be due to the delay, and cast doubt upon the decision or part of the decision.


The Honourable Mr Justice Burton (P)


UKEAT/710/03, [2004] UKEAT 0564 – 03 – 0203, UKEAT/564/03


Bailii, EATn


England and Wales


CitedGardiner Fire Ltd v Jones Thd Manufacturing Ltd (Third Party) CA 20-Oct-1998
A delay of 22 months between a hearing and the handing down of a judgment is quite intolerable. Judges creating such delays will in future be liable to such steps as could properly be taken by those in authority over them. Mechanisms had been put in . .

Cited by:

Appeal fromBangs v Connex South Eastern Ltd CA 27-Jan-2005
The failure of a tribunal to promulgate its decision was a matter of fact not of law, and could not therefore itself be a ground of appeal to the EAT. The EAT had allowed an appeal on the fair trial provision of the Convention. A failure to . .
CitedOlwa v North Glasgow University Hospitals NHS Trust, McGinley EAT 22-Mar-2004
EAT Race Discrimination – Direct
EAT Race Discrimination – Direct . .
Lists of cited by and citing cases may be incomplete.


Updated: 05 July 2022; Ref: scu.194441