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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.