Time limitsRe [1981] Ch 167Re [1919] 1 Ch 52Re [1981] Ch 167sub nom R v Secretary of State for the Home Department ex p Mehta [1975] 1 WLR 1087sub nom R v Secretary of State for the Home Department ex p Mehta [1975] 1 WLR 1087sub nom R v Secretary of State for the Home Department ex p Mehta [1975] 1 WLR 1087sub nom R v Secretary of State for the Home Department ex p Mehta [1975] 1 WLR 1087Re [1945] Ch 1Re [1919] 1 Ch 52
The importance of time limits
7.79A proper approach to time limits is important for the (actual or potential) parties to proceedings, to the efficient organisation of the tribunal system, and to the tribunal that deals with a case. For the parties, time limits can ensure certainty and finality. For the tribunal system, they assist the efficient disposal of cases in an appropriate time. And for the tribunal that hears a case, they raise issues of jurisdiction. As Burton J explained in
Clark v Midland Packaging Ltd:
1[2005] 2 All ER 266 at [5].The question, then, is one wholly of principle, arising out of the importance which this appeal tribunal places, as do other courts, upon compliance with time limits. This is not simply a pernickety approach by the courts. Compliance with time limits may have very considerable importance in relation to the bringing of appeals. If an appeal is out of time, then the question as to whether it can go forward becomes one of jurisdiction; albeit, of course, there is a discretion to be exercised, on the face of it there is no jurisdiction in an appeal court to hear an out of time appeal. Therefore the public is entitled to be protected from cases going forward which are out of time, and cluttering up the courts. There is still life in the old latin maxim,
sit finis litium, and a successful party below is entitled to assume, once the time limit is up, that the decision below remains unchallenged and can be enforced and acted upon.
2See the same judge in Woodward v Abbey National plc (No 2) [2005] ICR 1702 at [3]–[4] and [30]. That decision disapproved of the decision in Clark, but not in respect of the passage cited. Also see Cotton LJ in Esdaile v Payne (1889) 40 Ch D 520 at 533.7.80It is permissible to have regard to the importance of certainty by preventing the continuance of litigation when deciding whether the power to extend time has been exercised properly.
3See Ward LJ’s reasoning in the case of an administrative discretion to extend time in R (C) v Lewisham London Borough Council [2003] 3 All ER 1277 at 46.Relevant issues
7.81Time limits raise two issues: calculation and compliance.
7.82For calculation, three questions arise. All depend on the interpretation of the legislation. When does time begin to run? When does it end? Which days, if any, are excluded in calculating the period in between? These matters are considered below.
7.83For compliance, two factual questions arise. When was the document despatched? When did it arrive? These matters are considered at para 7.125 onwards.
Calculating time
7.84The rules of procedure make general provision about calculating time. UTR r12(1) and (2) is illustrative:
4See also: GRC Rules r12; HESC Rules r12; IAC Rules r11; Lands Rules r12; PC Rules r15; SEC Rules r12; Tax Rules r12; WPAFC Rules r12.(1)An act required by these Rules, a practice direction or a direction to be done on or by a particular day must be done by 5pm on that day.
(2)If the time specified by these Rules, a practice direction or a direction for doing any act ends on a day other than a working day, the act is done in time if it is done on the next working day.
5This does not extend the time by or within which an act must be done; it merely deems it to be done in time: Hodgson v Armstrong [1967] 2 QB 299. 7.85The rules define working day. UTR r1(3) is illustrative:
6See also: GRC Rules r12(3); HESC Rules r1(3); IAC Rules r1(4); Lands Rules r12(3); PC Rules r15(3); SEC Rules r12(3); Tax Rules r12(3); WPAFC Rules r12(3).‘working day’ means any day except a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday under section 1 of the Banking and Financial Dealings Act 1971.
7.86A tribunal office may be closed on a day that is a working day within the definition in the rules. That eventuality is not covered by rule 12. However, in those circumstances the period is interpreted as expiring only on the next day when the office is open for business.
7Pritam Kaur v S Russell & Sons Ltd [1973] QB 336. This is a general principle that operates independently of the rules of procedure.
8Mucelli v Government of Albania [2009] 1 WLR 276; R (Modaresi) v Secretary of State for Health [2011] EWCA Civ 1359, upheld by the Supreme Court in [2013] UKSC 53.The power to extend time
7.87This is one of the tribunal’s case management powers.
9See: UTR r5(3)(a); GRC Rules r5(3)(a); HESC Rules r5(3)(a); IAC Rules r4(3)(a); Lands Rules r5(3)(a); PC Rules r6(3)(a); SEC Rules r5(3)(a); Tax Rules r5(3)(a); WPAFC Rules r5(3)(a). In
Petition of JM v Advocate General for Scotland, Lord Boyd distinguished (in the context of the Criminal Injuries Compensation Scheme) between a power to waive a time limit and a power to extend the time, with only the latter being a case management function.
10[2013] CSOH 169 at [26].7.88If the time limit is absolute, the tribunal can extend time in an exceptional case if the party would otherwise effectively be denied a right of access to the appeal process and is not personally at fault.
11Pomiechowski v Poland [2012] 1 WLR 1604; Adesina v Nursing and Midwifery Council [2013] 1 WLR 3156.7.89The decision whether or not to extend time may be taken in advance or after the event.
7.90The power is given to the tribunal, not to the parties. However, the views of the other parties may be relevant to the exercise of the tribunal’s discretion. In practice under SEC Rules r23, a decision-maker may ensure that time is extended by not objecting.
7.91In the absence of an express provision, it is a matter of interpretation whether failure to comply with the time limit renders a purported appeal invalid.
12District Court of Vilnius v Barcys [2008] 1 All ER 733. See chapter 2.General principles
7.92The tribunal has a discretion whether or not to extend time. It must be exercised, like any other discretion under the rules, judicially and in the light of the overriding objective that applies to tribunals.
13And not the different overriding objective that applies under CPR: Leeds City Council v Commissioners for Her Majesty’s Revenue and Customs [2014] UKUT 0350 (TCC). Otherwise, the Upper Tribunal has said that any guidance ‘would either be so general as to be meaningless or would be likely to spark time-consuming and unnecessary satellite litigation.’
14Ofsted v AF [2011] UKUT 72 (AAC) at [21]. Nevertheless, some guidance can be gleaned from the cases.
7.93A person who applies to proceed out of time must justify being allowed to do so.
15Megarry V-C in Re Salmon (dec’d) [1981] Ch 167 at 175. This burden is not a triviality.
16[1981] Ch 167 at 175. The mere fact of delay is not itself sufficient to justify extending time. There must be material on which the discretion can be exercised. Otherwise, the purpose of a time limit would be subverted.
17Swinfed Eady MR in Re J Wigfull & Sons’ Trade Marks [1919] 1 Ch 52 at 58; Lord Guest in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12.7.94The power to allow an appeal against the public law decision of a tribunal to proceed out of time should not be exercised readily.
18Regalbourne Ltd v East Lindsey District Council [1993] COD 297 at 298.7.95Neither the parties nor the tribunal have power to allow proceedings to be initiated outside the period set by legislation without legislative authority.
19Holman J in Gwynedd Council v Grunshaw [2000] 1 WLR 494 at 498.7.96There may be a difference in the willingness with which a court will allow a case to proceed out of time according to whether the time limit is laid down by statute or in the rules of procedure. There is authority that time may be extended more readily in the latter.
20Megarry V-C in Re Salmon (dec’d) [1981] Ch 167 at 175. However, the modern approach is to emphasise the importance of keeping to a timetable and not to allow a time limit to be used merely as a target to aim for.
7.97The fact that the delay was attributable to the fault of a representative is not decisive either for or against the party who has applied for time to be extended, even if the party may have a claim against that representative.
21R (YT) v First-tier Tribunal and Criminal Injuries Compensation Authority [2013] UKUT (AAC) 0201 (AAC) at [4.22] in Appendix 2.7.98Factors relating to funding and obtaining advice will only be relevant if they explain the failure to initiate proceedings at any time within the period allowed.
22Woodward v Abbey National plc (No 2) [2005] ICR 1702 at [33].7.99The fact that a party relied on case-law that has since been changed may be relevant.
23Woodward v Abbey National plc (No 2) [2005] ICR 1702 at [46].7.100There is no general principle that governs how strictly a time limit is to be applied. As Sedley LJ explained in
Chief Constable of Lincolnshire Police v Caston:
24[2009] EWCA Civ 1298 at [31].… there is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised. In certain fields (the lodging of notices of appeal at the EAT is a well-known example), policy has led to a consistently sparing use of the power. That has not happened, and ought not to happen, in relation to the power to enlarge the time for bringing ET [employment tribunal] proceedings …
Exercising the discretion in advance
7.101Exercising the discretion in advance involves adjusting the default time-table for the proceedings in order to take account of the circumstances and needs of the particular case. The governing principle is that the timetable should allow the proceedings to be concluded in the shortest time possible given the issues raised and the resources available to the parties and to the tribunal.
Exercising the discretion after the event
7.102Exercising the discretion after the event involves remedying an irregularity as a result of failure to comply with the timetable for the proceedings.
7.103The factors relevant to the exercise of the discretion after the event have been analysed differently in different lines of authority. Following
Mitchell v News Group Newspapers Ltd,
25[2014] 1 WLR 795. as explained in
Denton v TH White Ltd26[2014] 1 WLR 3926. and applied in
R (Hysaj) v Secretary of State for the Home Department,
27[2015] 1 WLR 2472. there is a three-stage consideration. The seriousness or significance of the delay has to be considered first. If it was neither serious nor significant, time will usually be extended without considering the other stages. If it was either serious or signifcant, it is necessary to consider both the reason for the delay and all other relevant circumstances including the overriding objective. The approach set out by McCowan LJ in
Norwich and Peterborough Building Society v Steed28[1991] 1 WLR 449. can be easily absorbed into this structure:
The matters which this court takes into account in deciding whether to grant an extension of time are first, the length of the delay; secondly, the reasons for the delay; thirdly, the chances of the appeal succeeding if the application is granted; and fourthly the degree of prejudice to the respondent if the application is granted.
29[1991] 1 WLR 449 at 450.The Court was there concerned with the factors relevant to an application for permission to appeal, but they are of general application. The case was decided before the overriding objective was introduced, so factors relevant under that objective must also be considered, such as the impact on other users of the tribunal system.
30R (KS) v FTT and CICA [2012] UKUT 281 (AAC) at [11].7.104
C M Van Stillevoldt BV v E L Carriers Inc31[1983] 1 WLR 207 at 212–213. is an example of McCowan LJ’s approach. Griffiths LJ took account of the following factors when extending time: (i) the delay was short; (ii) there were personal and professional reasons explaining the delay by the solicitor; (iii) there was an arguable case on appeal; (iv) apart from having to defend the appeal itself, the other party was not prejudiced.
7.105The significance of each of these factors will depend on the stage of the proceedings. The case-law is concerned with the more significant delays and reflects the approach in those circumstances. That approach may need to be adjusted for different circumstances. For example: the reasons for delay are likely to be more significant in the case of a failure to initiate proceedings than in the case of a failure to respond to an appeal within the time allowed.
7.106The principles governing the exercise of the discretion in the employment jurisdiction were summarised in
Muschett v Hounslow London Borough Council:
32[2009] ICR 424 at [4]–[5].The leading authorities are cited in each case by the Registrar and the legal principles emerge from them. They are Kanapathiar v London Borough of Harrow [2003] IRLR 571; United Arab Emirates v Abdelghafar [1995] ICR 65; Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111; Woodward v Abbey National plc (No 2) [2005] ICR 1702 and Steeds v Peverel Management Services Ltd [2001] EWCA Civ 419 at [38]–[40], as applied to an employment tribunal case in Chohan v Derby Law Centre [2004] IRLR 685.
In short those principles are as follow and I accept in part the approach of Mr Moretto of counsel in his written skeleton argument. (i) The interests of the parties and the public are in certainty and finality of legal proceedings and thus make the court’s response more strict about time limits on appeal than at first instance. (ii) An extension of time is an indulgence requested from the court. The Employment Appeal Tribunal must be satisfied that there is a full honest and acceptable explanation of the reasons for the delay (United Arab Emirates v Abdelghafar [1995] ICR 65, 70, 71). (iii) The 42-day time limit will only be relaxed in rare and exceptional cases for there is no excuse even in the case of an unrepresented party for ignorance of the time limits (Abdelghafar, at p 71). (iv) The Employment Appeal Tribunal will have regard to the length of delay and be astute to any evidence of procedural abuse or intentional default (Abdelghafar, at p 71). (v) It has often been emphasised that compliance with the time limit is of the essence (Woodward v Abbey National plc (No 2) [2005] ICR 1702, paras 3 and 4). (vi) An excuse may not be sufficient unless it explains why a notice of appeal was not lodged through the entirety of the period. This means that an analytic approach should be taken to different parts of the period. Since the test is not ‘not reasonably practicable’ as it is for many employment protection rights at first instance, it is not fatal to an appeal that the appellant was able during part of the period to comply. To take examples given in argument: a claimant receives the judgment and resolves to appeal in week 1 but suffers a stroke and is physically unable to lodge an appeal in time. A sympathetic approach would be forthcoming for the second segment, of course, but also for the first as it would not be just to debar someone for not acting immediately on receipt of a judgment. A less sympathetic approach to the first segment might be taken if the stroke occurred in week 6. All would depend on the facts adduced in explanation for not acting during that time. (vii) In short as Mummery LJ said in Abdelghafar [1995] ICR 65, 72, the three questions 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 …?
(viii) In tribunals at first instance, the fault of a legal adviser to enter proceedings in time should not be visited upon the claimant for otherwise there would be a windfall: see Steeds v Peverel Management Services Ltd [2001] EWCA Civ 419. While this rule does not apply directly in the Employment Appeal Tribunal, it is a factor which when combined with others might contribute to the exercise of discretion. (ix) The Practice Statement [2005] ICR 660 makes clear that all documents should be produced as required by the Rules and the Practice Direction and that this applies also to litigants in person. Pill LJ in Dunham v Hull & East Riding Overseas Plastic Surgery [2006] EWCA Civ 557 at [20]–[22] stated:
… the duty of complying with time limits is upon the parties and their advisers. If a party chooses … to leave it very late, it is the responsibility of the party to ensure that the relevant document is served within the time limit It is not the duty of a member of staff of the Employment Appeal Tribunal to advise litigants as to procedures to be followed.
These principles have to applied with caution in other fields, taking account of the different provisions that apply and the different context.
33R (YT) v First-tier Tribunal and Criminal Injuries Compensation Authority [2013] UKUT 0201 (AAC) at [4.16]–[4.17] in Appendix 2.The reason for the delay
7.107The reason for the delay is a first, but not necessarily the conclusive, consideration. In
Jurkowska v Hlmad Ltd,
34[2008] ICR 841 at [19]. Rimer LJ explained:
In the ordinary case a good explanation and excuse will have to be shown. But, even if the explanation does not amount to a good excuse, there may be exceptional circumstances which anyway justify an extension.
35See also Regalbourne Ltd v East Lindsey District Council [1993] COD 297 at 298.7.108There are different views about the party’s decision to act only at the last minute. On the one hand, as Rimer LJ said in
Jurkowska v Hlmad Ltd:
36[2008] ICR 841 at [48].… an appellant is fully entitled to take the full 42 days for instituting his appeal. He of course runs a risk in doing so, because things can go wrong at the last minute.
But, on the other hand, as Sedley LJ said in that case:
37[2008] ICR 841 at [69].The real question is whether, given the generous time limit, there was a good and acceptable excuse for missing it.
7.109Waiting for a decision on whether legal aid will be granted is not to be treated with indulgence.
38R (Kigen) v Secretary of State for the Home Department [2016] 1 WLR 723.The length of the delay
7.110Even if there is an acceptable explanation for the delay, it is relevant to consider the length of the delay. A delay may be too long to justify time being extended.
The merits of the case
7.111The merits of the case may tell for or against time being extended.
7.112They are always relevant, subject to the terms of the legislation.
39For example: in Short v Birmingham City Council [2005] HLR 6 at [19], Tugendhat J decided that the merits were not relevant as permission to appeal out of time could only be given if there was good reason for failing to bring the appeal in time. This is so even if there is a good excuse for the whole of the period of delay. As Lord Donaldson MR explained in
Norwich and Peterborough Building Society v Steed,
40[1991] 1 WLR 449. where the merits had already been decided:
Once the time for appealing has elapsed, the respondent who was successful in the court below is entitled to regard the judgment in his favour as being final. If he is to be deprived of his entitlement, it can only be on the basis of a discretionary balancing exercise, however blameless may be the delay on the part of the would-be appellant.
41[1991] 1 WLR 449 at 455.The merits are relevant even if the appeal lies as of right and without permission.
42R (Birmingham City Council) v Crown Court at Birmingham [2010] 1 WLR 1287 at [32]. The significance of the merits will depend on the other factors. They may have little significance if the delay was short and excusable,
43Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 was limited to this proposition by Lord Donaldson MR in Norwich and Peterborough Building Society v Steed [1991] 1 WLR 449 at 455, despite the apparent breadth of the comments about the relevance of the merits. See also the similar reasoning by Ward LJ in the case of an administrative discretion to extend time in R (C) v Lewisham London Borough Council [2003] 3 All ER 1277 at [49]. but greater significance if the delay was long and not wholly excusable.
44Norwich and Peterborough Building Society v Steed [1991] 1 WLR 449 at 455.7.113According to
R v Secretary of State for the Home Department ex p Mehta,
45[1975] 1 WLR 1087 at 1091; R (Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 2472 at [46]. it is not appropriate to go into the merits in much detail.
7.114In considering the merits, it is relevant to take into account the reluctance of an appellate body to interfere with procedural decisions.
46Lord Westbury in Boston v Lelièvre (1870) LR 3 PC 157 at 163; Mayor, Aldermen and Citizens of the City of Montreal v Brown and Springle (1876) 3 App Cas 168 at 184; Lord Guest in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12. All these were cases involving decisions by courts in other countries, but the principle is a general one.7.115The narrower approach taken on striking out a case for lack of prosecution is not relevant to allowing a case to proceed out of time, because there the issue is whether a party should be deprived of an existing right to continue with the proceedings.
47Regalbourne Ltd v East Lindsey District Council [1993] COD 297 at 298, citing Lord Guest in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12.Prejudice – the effect of extending or refusing to extend time on the parties
7.116Prejudice requires a consideration of the effect of extending or refusing time on the parties. It involves a judgment of the balance of prejudice that each party may suffer, depending on how the discretion is exercised.
Special reasons or circumstances
7.117Legislation may link the extension of time with special reasons or special or particular circumstances. These authorities may be relevant to the exercise of the general discretion under the rules of procedure.
7.118In
R v Secretary of State for the Home Department ex p Mehta,
48[1975] 1 WLR 1087. Lord Denning MR said of a rule that an appeal that was out of time could be allowed ‘to proceed if the authority is of the opinion that, by reason of special circumstances, it is just and right so to do’:
… the rule gives the tribunal a discretion to do what is just and right. It should be liberally interpreted by them so as not to let an appellant suffer unfairly.
49[1975] 1 WLR 1087 at 1091.7.119Expressions like this allow a wider consideration than whether compliance was practicable. That is a factor that may be taken into account, but it is not the only factor.
50[1975] 1 WLR 1087 per Lord Denning MR and Browne LJ at 1090 and 1092.7.120Time is more likely to be extended on appeal if a point of general application is involved rather than a point of particular application.
51[1975] 1 WLR 1087: Lord Denning MR at 1091, distinguishing the comments he made in R v Preston Supplementary Benefits Appeal Tribunal ex p Moore [1975] 1 WLR 624 at 632. Those comments, which relate to points of particular application, were made in the context of judicial review at a time when, as the comments show, there was no appeal from the tribunal to a court. Nonetheless, the distinction is still relevant.7.121A retrospective change in the law on which a decision was based is not of itself a ground on which time should be extended for applying for leave to appeal.
52Craig v Phillips (1877) 7 Ch D 249. The issue is whether it is just to extend time.
53Re J Wigfull & Sons’ Trade Marks [1919] 1 Ch 52; Re Berkeley [1945] Ch 1. An extension has been granted on the ground that a party’s future, as opposed to past, obligations had been determined wrongly on the law as it now stood.
54Property and Reversionary Investment Corporation Ltd v Templar [1977] 1 WLR 223. By way of analogy, a retrospective change in the law has been held to be a special circumstance for the purposes of issue estoppel.
55Browne-Wilkinson V-C in Arnold v National Westminster Bank plc [1989] Ch 63.Reasons for delay or reasonably practicable to comply
7.122Legislation may link the extension of time to the reasons for delay
56For example: the Housing Act 1996 s204(2A) allows an appeal to be brought after the end of the period allowed if ‘there was a good reason for the applicant’s failure to bring the appeal in time and for any delay in applying for permission’. or to whether it was reasonably practicable to comply with the time limit. These authorities may be relevant to the exercise of the general discretion under the rules of procedure.
7.123The ‘reasonably practicable to comply’ test applies to employment tribunals. Under the authorities, a party is entitled to rely on the ordinary course of post.
57Consignia plc (formerly the Post Office) v Sealy [2002] ICR 1193. If the internet is available, a party is entitled to rely on the website working properly.
58Tyne and Wear Autistic Society v Smith [2005] ICR 663.The power to shorten time
7.124Like extending time, the decision whether to shorten time is a discretion that must be exercised judicially in the light of the overriding objective. Unlike extending time, it can only be exercised in advance to adjust the default timetable for the proceedings.