3(1) Every appeal to the Appeal Tribunal shall, subject to paragraphs (2) and (4), be instituted by serving on the Tribunal the following documents–

The period within which an appeal to the Appeal Tribunal may be instituted is—

Was it also premature to institute the appeal before the written reasons had been provided? That depends on whether the end of the 42-day period is merely the latest date to institute the appeal, or whether the requirement is for the appeal to be instituted during the course of that period. The opening words of rule 3(3) – “the period within which” – are arguably supportive of the latter reading, if perhaps also arguably not wholly unambiguous. That said, paragraph 4.1 of the Practice Direction opens with the words ”the time within which”, which is perhaps a little less clear.

However, rule 39(3) indicates that the tribunal may exercise its rule 39(2) power to authorise the institution of an appeal notwithstanding that ”the period prescribed in rule 3(2) may not have commenced.” At first sight the reference to rule 3(2) – which concerns the documents required in a national security case – is puzzling. But the clear explanation is that, in the rules as originally framed, rule 3(2) concerned time for appealing. The current rule 3(2) was added by amendment in 2001, and rule 3(2) then became rule 3(3) . However, plainly the drafter overlooked to make a consequential amendment to the cross-reference within rule 39(2). I note also, in this regard, that the original version of rule 3(2) itself (now rule 3(3)) used the opening words: ”[t]he period within which”.

It does therefore appear to me, reading the opening words of rule 3(2) with the words of rule 39(3), that the drafter did envisage a window during the course of which the appeal should be instituted, and which, in a case such as the present, opens when the tribunal sends the written reasons.

However, in my judgment, while this conclusion emerges to the legal mind from a careful consideration of the rules as a whole, the possibility that the time provisions might operate by creating a window rather than a long-stop is not an obvious one , and does not leap out starkly from a reading of rule 3 , or the Practice Direction; and rule 39 also appears at the very end of the rules, a long way from rule 3 . Further, in a case where it might be said that the appeal has been technically instituted prematurely, but otherwise compliantly, rule 39(3) does enable the rule 39(2) power to be exercised, effectively to cause rule 3(2) to be treated in that case as merely applying a longstop.

If there has been a timely request for written reasons, but these have yet to be received at a time when it is approaching 42 days from when the written judgment was sent, it is also not hard to understand why a prospective appellant might feel that they should take all the steps that they can to institute their appeal before that date passes, in order to minimise the risk of being caught out.

Further, it is fair to assume that, in most cases, this point will not make any actual difference. That is because, in most cases, even where the appeal has been instituted before the timely-requested reasons were received, they will be sent in to the EAT by the appellant within 42 days of the date of receipt. This, combined with the fact that, when there is a timely request, the party concerned will always have until 42 days from the date of receipt of the reasons to institute the appeal, perhaps also explains why the Practice Direction does not expressly cater for the particular scenario that arose in the present case. Further, the paradigm case (though there could be others) with which paragraph 3.4 of the Practice Direction is implicitly concerned is, it seems to me, one in which no reasons have been provided because there was no, or no timely, request for them; and so in such cases written reasons will not be provided unless the EAT is persuaded to exercise its power to request them.

It occurs to me that it might be argued that, even in a case where there is a timely request for written reasons, the party concerned presents their appeal by providing everything else required before the reasons arrive, explains to the EAT that the reasons have not been included, because they have been requested but not yet received, and then sends them to the EAT within 42 days of receiving them, the proper course would be for them to start again, by resending everything they sent earlier. But I do not think that technocratic argument is right; and even if it is, it is hard to envisage a clearer case for the exercise of the rule 39(2) power, in order to further “the more expeditious or economical disposal of any proceedings” and/or “the interests of justice.”

It is my understanding, and experience, as a resident EAT judge, that, in cases where an appeal is otherwise properly instituted ahead of receipt of written reasons, and there is a clear explanation, supported by evidence, that a timely request for these has been made, the usual practice of the EAT is indeed to treat the appeal as properly instituted at that point; but also to take the approach that a copy of the written reasons, once received, needs to be provided to the EAT, before consideration is given to the next appropriate step. In light of the foregoing that appears to me to be, in principle, the right approach, in such clear cases, so as to further the expeditious and economical disposal of such appeals, and in accordance with the interests of justice to both parties and the overriding objective . [emphasis added]

37(1) The time prescribed by these Rules or by order of the Appeal Tribunal for doing any act may be extended (whether it has already expired or not) or abridged, and the date appointed for any purpose may be altered, by order of the Tribunal. …

We of course accept the broad proposition, by which this Court is bound, that the EAT is entitled to enforce the time limit strictly. …we accept Mr Crozier and Ms Greenley’s 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.

The principles and guidance set out in Abdelghafar [1995] ICR 65 concerning the EAT’s approach to applications to extend the time limit for appeals have been approved by this Court on several occasions. It is perceived as being a strict, perhaps “hard-hearted”, approach. But it is not inflexible. It involves the exercise of a discretion in a way which is “judicial”, “even-handed” and, above all, fair.

We conclude that the exercise of the discretion involves recognising a material distinction. There is a legally significant difference 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 first such appellant has not fully met the requirements of rule 3(1), but has, nevertheless, substantially complied with them. How substantially depends on what document/documents is/are missing, how much of any document is missing, and how important the document is to the appeal. That appellant has also, on the face of it, complied with the time limit in rule 3(3). That difference is obviously material to the exercise of the discretion to extend time. It follows that that difference should, in principle, be reflected in the EAT’s approach to the exercise of its power to extend time. We accept that the authorities about cases in which documents were missing do not refer to this distinction, and, it follows, do not consider whether or not it is material to the exercise of the discretion. But we see nothing in the reported decisions in this Court to suggest that we are wrong to hold that the distinction we have identified is material to the exercise of the discretion.

The express recognition of the importance of that distinction is consistent with, and does not conflict with, the guidelines in Abdelghafar , by which we are bound. The basis of those guidelines is that the EAT takes a strict view of the importance of submitting an appeal within the time limit in rule 3(3) . The three appeals with which we are concerned, however, are all cases in which an appellant has substantially complied with that rubric. Moreover, the guidelines are just that. They are not rigid rules of thumb. Rather, they are intended to guide the exercise of a very wide discretion, not to dictate the outcome of that exercise , as Mummery J made clear in Abdelghafar and as Rimer LJ repeated in Jurkowska [2008] ICR 841 (see paras 24–28 and 53, 57 and 61–63, above).

We consider it important to note that, before setting out the specific guidance in Abdelghafar , Mummery J was careful to identify the underlying principles. We have set them out at para 24 above. The key principles are the first two (at pp 70–71):

Nothing has been said in the subsequent authorities in this court to derogate from these expressions of principle. Indeed, they have been repeated and endorsed—see for example Underhill LJ in Green v Mears Ltd [2019] ICR 771 at para 8.

Three further points follow. First, a case in which an appeal is lodged in time but a document or part of a document is missing is very likely to be a case in which the appellant has made a mistake. The mistake is the reason for invoking the discretion conferred by rule 37(1) . The fact that a mistake has been made cannot, therefore, be used as a reason for barring the exercise of that discretion (and see para 152(ii), below). An understandable or reasonable mistake about the documents cannot necessarily be discounted simply on the basis that, had the litigant filed the papers earlier, the mistake might have been picked up and corrected before the expiry of the time limit . That would be to exercise the discretion in a “programmed” way. Second, before it can lawfully consider the exercise of its discretion in such cases, the EAT must clearly understand the appellant’s explanation for her mistake, because, unless it does so, it cannot properly consider whether that explanation is satisfactory or not. Third, while the EAT has no duty to correct an appellant’s mistakes, when the EAT in due course tells the appellant that she has made a mistake, the delay which is relevant to the exercise of the discretion to extend time is the delay between when the EAT tells the appellant of her mistake, and when she corrects it , … [emphasis added]

If the appellant makes a minor error in complying with the requirement under rule 3(1) to submit relevant documents to the Appeal Tribunal, and rectifies that error (on a request from the Appeal Tribunal or otherwise), the time prescribed for the institution of an appeal under rule 3 may be extended if it is considered just to do so having regard to all the circumstances , including the manner in which, and the timeliness with which, the error has been rectified and any prejudice to any respondent. [emphasis added]

‘Minor’ is an ordinary English word. It is a comparative adjective, as the Judge observed. The opposite of ‘minor’ is ‘major’ . Rule 37(5) refers to ‘a minor error in complying with the requirement under rule 3(1) to submit relevant documents’ to the EAT. Whether an error is ‘minor’, or not, therefore, is not an abstract question. It is to be answered in the context of compliance with rule 3(1). I consider that the Judge’s interpretation is wrong for three reasons. First, it ignores that criterion for testing whether the error is ‘minor’. The relevant error is a minor error in complying with rule 3(1), not a ‘minor error’ in doing something else, or a free-floating ‘minor error’ . Second, it adds a gloss, which comes from the cases on the unamended Rules, that the document or part of the document which is the subject of the ‘minor error’ should have been irrelevant, or have no importance, to the ‘proper progress of the appeal’ . There is no support for that gloss in the words of rule 37(5). Third, an evident purpose of rule 37(5) is to confer a broad discretion on the EAT (in cases of a minor relevant error which has been rectified) to decide whether to give an extension of time having regard to all the circumstances. The scope for the exercise of that discretion is greatly reduced if the threshold condition for its exercise is interpreted too narrowly .

That construction is based on the words of rule 37(5) alone. They are the best guide to its meaning. It is also supported by the court’s knowledge of the mischief at which the amendments were aimed. In deciding what that mischief was , I have taken into account the decision in Ridley , which describes the development of the relevant authorities, and the Explanatory Memorandum. The mischief, briefly (before the decision in Ridley ) , is, first, that an appellant who submitted his appeal in time, but with a document or part of document missing, was required by the EAT to apply for an extension of time for submitting an appeal, and was treated in exactly the same way as an appellant who missed the deadline altogether. The consequences of that approach for the EAT are the second part of that mischief. About a fifth of appeals to the EAT were being submitted within the time limit for appealing, but with missing documents or parts of documents. That was causing much extra work for the EAT’s administrative staff and using up the time of the Registrar and of the judges who sit in the EAT, because of the number of applications for extensions of time and of appeals which were a result. That was causing significant delays to all litigants. There was also a lively and more specific concern about access to justice, since the strictness of the EAT’s approach to cases in which appellants found it hard to comply with the requirements of rule 3(1), and the numbers of such cases, meant that significant numbers of appellants who had submitted their appeals in time were being denied an appeal . …

A further point occurred to me about the construction of rule 37(5) in this case. It could only arise in a case like this, if the EAT were to decide that, because of the date when the appeal was lodged, the unamended version of rule 3(1) applied to the appeal, but rule 37(5) also applied. The Amendment Rules made both amendments with effect from the same date. It may well be that it did not occur to the draftsman that there could be a case in which the old version of rule 3(1) and rule 37(5) would apply in the same case. But in such a case, it might be thought that the removal of the ET1 and the ET3 from the list of documents required by rule 3(1) could cast some light on the question whether their omission (in a case to which rule 37(5) nevertheless applied) could be an error at all, or, it would follow, a ‘minor error’ in complying with rule 3(1). …

I do not consider that it is helpful for this court to give general guidance about what is or is not a minor error in complying with rule 3(1). Some of the possibilities were canvassed in argument (see paragraphs 40 and 42, above). One of the clear messages from the authorities is that the discretion to extend time must not be exercised in a ‘pre-programmed’ way . What matters in every case is the relevant facts, which are for the Registrar at first instance, or the EAT judge, if there is an appeal, to find. It is also for the EAT, which has the day-to-day practical experience of dealing with these cases, and not for this court, to decide whether it is desirable or helpful to create guidance.

The approach in Ridley is, in one respect, harsher on appellants than the approach under rule 37(5), because it requires them to give a satisfactory explanation for their mistake . There is no such requirement in rule 37(5). As I have just said, Mr Melki would not, for that reason, have been given an extension of time if the decision in Ridley were applied to his case. For that reason I do not consider that it would be helpful for this court to decide definitively whether or not rule 37(5) has superseded the reasoning in Ridley in all cases. I would leave that question to be resolved by the EAT in a case or cases in which it might matter. [emphasis added]

As to the last paragraph, I am not sure whether the term “satisfactory explanation” is intended to be different to a “good excuse”. Rimer LJ held that the latter might not be a prerequisite of an extension of time in Jurkowska . I take it that the terms are subtly different. An appellant who openly admits that they made a mistake, that they cannot explain further, such as failing to attach a document to an email submitting the appeal by oversight, might not have a “good excuse” but could possibly have a “satisfactory explanation” in that it is open and honest; and we all know that to err is to be human.

You must provide a full and honest explanation for the delay. The Registrar, or Judge on appeal from the Registrar, will consider the explanation, whether it is a good excuse for the delay and whether there are circumstances which justify the tribunal taking the exceptional step of granting an extension of time.

The following are generally not good excuses that explain submitting a Notice of Appeal late :

If you make a minor error in complying with the requirement under Rule 3(1) of the EAT Rules to submit relevant documents to the EAT, and rectify that error (on a request from the EAT or otherwise), the time prescribed for the institution of an appeal under Rule 3 may be extended if it is considered just to do so having regard to all the circumstances, including the manner in which, and the timeliness with which, the error has been rectified and any prejudice to the respondent.

There are probably only a limited number of appeals that were submitted before the rule change that are still awaiting an appeal from a Registrar’s Order refusing an extension of time. However, now the dust is settling, respondents in such appeals should consider with care whether to maintain their objections to an extension of time.