Monthly Archives: August 2025

Court of Appeal grants permission to appeal in novel appeal from the EAT: Arfan Khan appeared for the successful Appellant

Court of Appeal, Guidance from the Court of Appeal

Introduction

Arfan Khan, instructed by DCK Solicitors, obtained permission to appeal to the Court of Appeal in a case from the Employment Appeal Tribunal (EAT), involving a novel legal issue under Rule 37 (5) of the Employment Appeal Tribunal Rules 1993 (the EAT Rules). Thereafter, the appeal settled.

The factual context

The issue arose from the EAT’s refusal to extend time to appeal where the Appellant’s solicitors had failed to file two documents — the ET3 and the grounds of resistance — when lodging the appeal. The Appellant’s solicitors lodged an appeal on 18 September 2021, but they failed to include the ET3 form and grounds of resistance. Although the solicitors inquired about the appeal’s progress, the omission was only identified by the Employment Appeal Tribunal on 23 April 2022, prompting the submission of the missing documents two days later. The EAT Registrar ruled the appeal to be 217 days late and refused an extension. This decision was upheld by an EAT judge, where the Appellant was represented by different counsel.

The appeal to the Court of Appeal

The Appellant appealed to the Court of Appeal, contending that the EAT applied the wrong test when determining whether to grant the Appellant an extension of time to file the complete appeal notice. The Appellant contended that EAT had erred in law by misapplying Rule 37 (5), and in the exercise of its discretion, where the delay was minor and rectified without prejudice to the Respondent. At the time of filing, there was no authority directly addressing this issue in a case involving a solicitor’s error.

After the Appellant filed written submissions, the Court of Appeal handed down two decisions — Davies v BMW (UK) Manufacturing Ltd [2025] EWCA Civ 356 and Melki v Bouygues [2025] EWCA Civ 585 — both of which supported the Appellant’s original analysis advanced by Arfan Khan on appeal to the Court of Appeal. The Appellant made further submissions. Lady Justice Laing directed amended grounds of appeal on 20/5/2025, and these were filed on 21/5/2025. Insofar as relevant, these included the following grounds and arguments:

1.  The EAT failed to interpret Rule 37 (5) of the EAT rules correctly and consistently with legislative intent. The Appellant argued that rule 37 (5) did not require a satisfactory explanation for the error, and the common law authorities to the contrary did not have to be followed in light of higher authority concerning statutory construction. The Appellant relied on the observations of Lady Justice Laing in Melki, where the Court of Appeal questioned the imposition of a test requiring a satisfactory explanation not grounded in the statutory language in Rule 37 (5) (paragraphs [56], [58], and [59]).

2. The EAT’s refusal to extend time was, in any event, a wrongful exercise of discretion. The procedural error was inadvertent, swiftly rectified upon notification, and had not caused any material prejudice to the Respondent. The Appellant relied on the reasoning of Lord Justice Underhill in Melki at paragraph [64], who drew a clear distinction between procedural failures arising from deliberate or reckless disregard of the rules (or pursuit of a tactical advantage) and those resulting from mere inadvertence. The latter, on the reasoning of Lord Justice Underhill, may be sufficient to justify the grant of an extension of time.

The Respondent resisted the application for permission to appeal and amend the grounds through counsel. However, Lady Justice Laing granted both permission to appeal and permission to amend the grounds of appeal. In doing so, she noted the absence of authority on the application of amended Rule 37 in circumstances where, as here, the appellant was legally represented at the time the notice of appeal was filed.

 

 

 

Zambian Adoption Recognised in English High Court Probate Trial: Arfan Khan Acts for Successful Claimant

Chancery Division Trial, Conflict of Laws, , , ,

Zambian Adoption Recognised in English High Court Probate Trial: Arfan Khan Acts for Successful Claimant

Introduction

Arfan Khan appeared for the successful Claimant in a contested probate trial before Deputy Master Jefferis in the High Court, Chancery Division. The extempore Judgment was delivered on 30 July 2025, following a 2.5-day trial. The Court granted the Claimant a declaration that he was an adopted son of the deceased and, accordingly, entitled to letters of administration. The Defendant was ordered to pay the Claimant’s costs, including an interim payment on account of such costs.

This was notwithstanding the Defendant’s reliance on a judgment of the Zambian High Court, which had previously granted letters of administration over the same estate to her and another relative.

Procedural Background

The Defendant was initially legally represented, but her legal team withdrew. The Defendant then appeared in person at trial, accompanied by a McKenzie friend, authorised by the Court.

During the hearing, the Defendant made three separate applications to adjourn, one of which was supported by medical evidence that the Court found inadequate. Applying established legal principles on adjournments, the Court refused all three applications and awarded the Claimant costs in respect of each.

Factual Background

The Claimant was adopted in Zambia in November 2002 and subsequently relocated to the United Kingdom, where he lived with the deceased. He was enrolled in school and registered with a GP surgery, naming the deceased as his parent. His UK immigration records confirmed entry as her adopted child.

The Claimant’s adoption status was never disputed during the deceased’s lifetime. However, following her death, the Defendant allegedly excluded the Claimant from estate matters and removed documentation evidencing the adoption. The Defendant later obtained letters of administration in Zambia, but it emerged that the Zambian Court had not been shown key adoption documents, which were subsequently produced in the English High Court proceedings.

The Issues

The central issue for the Court was whether the Claimant had been lawfully adopted by the deceased and, if so, whether he was entitled to letters of administration in priority to the Defendant. The Defendant opposed the Claimant’s application and sought a grant in favour of the deceased’s sibling. She further alleged that the Claimant’s birth certificate was a forgery and invited the English Court to recognise the Zambian grant of administration.

During trial, the Defendant introduced—for the first time—an adoption petition suggesting that the deceased had applied to adopt another relative. She contended that this undermined the Claimant’s case and highlighted alleged inconsistencies in the Claimant’s parentage.

Expert Evidence and Submissions

Arfan Khan conducted the examination-in-chief of the Claimant’s expert in Zambian law. The expert gave evidence as to the authenticity and legal effect of the Zambian adoption documents, confirming that they were valid and binding under Zambian law.

Following the Defendant’s withdrawal from the proceedings, the Court adapted the trial process to ensure procedural fairness by undertaking the cross-examination itself that would ordinarily have been conducted by the Defendant. In response to judicial questions, the expert reaffirmed the validity and binding nature of the adoption order.

Recognition of the Zambian Grant

On behalf of the Claimant, Arfan Khan submitted that the Zambian grant of letters of administration should not be recognised in England and Wales, as it had been obtained in breach of the principles of natural justice. Specifically, the Zambian court had not been shown material adoption documents. It was further argued that the adoption documents were authentic and legally valid under Zambian law.

The Court accepted these submissions and declined to give effect to the Zambian judgment. The Judge therefore ordered that the Zambian grant should not be resealed in England and Wales.

The Court also noted a further submission advanced by Arfan Khan on behalf of the Claimant: that, based on the date of birth recorded in the documentary evidence, the individual named in the Defendant’s adoption petition (who was not a party) could not have been a minor at the material time and, accordingly, could not have been lawfully adopted under English law.

Arfan Khan was instructed on behalf of the Claimant by C V Brooks Solicitors