Kwik Save Stores Ltd v Swain: EAT 1997

An appellate court whose jurisdiction is limited to matters of law can only interfere where there has been a breach of well-established legal principles such as failing to take account of relevant factors.
When considering barring a party for late filing of a document, the absence of a good reason for a response not being entered in time is not, itself, determinative, but that other matters require to be considered by a Tribunal in the exercise of its discretion, including the merits of the defence set against the prejudice to the Claimant, the length of any delay, and the extent of any prejudice to the parties. Mummery J said that if the delay: ‘is the result of a genuine misunderstanding or an accidental or understandable oversight, the Tribunal may be much more willing to allow the late lodging of a response.’
The employer appealed against the refusal to extend time for a response under Rule 3. The employer lodged affidavits and exhibits sworn after the Industrial Tribunal Decision, in the EAT. Mummery P said: ‘We have read some of the correspondence exhibited to the affidavits, but have paid little attention to the contents of the affidavits themselves. As an appeal to this tribunal is only on a question of law, we find difficulty in understanding the basis on which the employers could properly file affidavit evidence on matters which could, and should, have been put before the industrial tribunal chairman on the applications for extensions of time. Reference was made to the decision of this appeal tribunal in Charlton v Charlton Thermosystems (Romsey) Ltd [1995] ICR 56 which sets out a procedure for affidavit evidence by an appellant who has never entered a notice of appearance and is seeking to appeal against a substantive decision on the merits reached adversely to him. In those cases the appeal tribunal laid down a procedure, at p. 60E-H, so that the tribunal could be satisfied that the appellant against the substantive decision had a reasonably arguable defence on the merits, as well as a satisfactory explanation for his failure to enter a notice of appearance or to apply for an extension of time for entering a notice of appearance. If the tribunal were not satisfied on those matters, then the appeal would be dismissed at a preliminary hearing.
These cases are not, however, appeals against a substantive decision on the merits. They are appeals against the interlocutory refusal of the chairman to grant an extension of time for serving a notice of appearance before the full hearing on the merits has taken place. In such cases it is incumbent upon the applicant for an extension of time to place all relevant documentary and other factual material before the industrial tribunal in order to explain (a) non-compliance with the Rules and (b) the basis on which it is sought to defend the case on the merits. Depending on the nature and circumstances of the case, that may be done by letter to the tribunal, or by affidavit verifying the factual position or at an oral hearing. The admission of fresh evidence on the hearing of an appeal against the refusal of an extension of time by the industrial tribunal is rarely necessary and is unjustifiable unless the strict requirements of Ladd v Marshall [1954] 1 WLR 1489 are satisfied: see Wileman v Manilec Engineering Ltd [1988] ICR 318.’


Mummery J


[1997] ICR 49


Industrial Tribunal Rules 1993 3


England and Wales


CitedCharlton v Charlton Thermosystems (Romsey) Ltd EAT 1995
EAT The EAT set out a procedure for affidavit evidence by an appellant who had never entered a notice of appearance and was seeking to appeal against a substantive decision on the merits reached adversely to him. . .

Cited by:

CitedBryant v Housing Corporation CA 21-May-1998
A complainant before an industrial tribunal will only be allowed to amend her statement in order to add an allegation of victimisation for sex discrimination where this arises naturally from the facts alleged. In this case the new claim was rather . .
CitedMoroak T/A Blake Envelopes v Cromie EAT 19-Apr-2005
EAT Response lodged at the Employment Tribunal 44 minutes late and the Employment Tribunal ordered that the Respondent could take no part in the proceedings and refused to review that order on the basis it had no . .
CitedNelson v Newry and Mourne District Council NIIT 26-Oct-2006
. .
Still good lawPendragon Plc T/A CD Bramall Bradford v Copus EAT 11-Jul-2005
EAT Practice and Procedure
Response served by Respondent out of time and judgment in default entered. Chairman found that pursuant to Rule 33 of the new Rules he had no discretion to review the default . .
CitedNSM Music Ltd v J H Leefe EAT 14-Dec-2005
EAT Practice and Procedure: Appearance/Response, Review and Appellate Jurisdiction/Burns-Barke
When a Respondent has been debarred from taking part in proceedings under ET Rule 9, he may request Reasons . .
CitedKLT Construction Ltd v Swain EAT 8-Jul-2010
EAT PRACTICE AND PROCEDURE – Appearance/response
At a review of a default judgment, made because of the late response, the Employment Judge did not consider the prospect of its success. Given that error, . .
Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice

Updated: 12 May 2022; Ref: scu.186767