The Court of Appeal has allowed an appeal against the EAT’s refusal to extend time to permit an appeal to proceed in Parker v West Midlands Trains Ltd [2026] EWCA Civ 357, addressing the exercise of discretion under Rule 37(5) of the EAT Rules 1993 where delay follows misleading Tribunal correspondence.

The Appellant, a litigant in person, lodged a notice of appeal together with his ET1 but omitted the attached Particulars of Claim. The EAT notified him of the omission. The Appellant responded by providing a different document (“Further and Better Particulars”).

On 11 January 2023, the EAT wrote to the Appellant indicating that preliminary checks suggested the appeal had been “properly instituted”. It was not until 28 March 2023 that the EAT identified that the Particulars of Claim remained outstanding. The Appellant provided the correct document within three hours. The appeal was treated as having been instituted some three months out of time.

The appeal proceeded against a changing legal background, with Ridley v HB Kirtley and subsequently Melki v Bouygues E&S Contracting UK Ltd which clarified the threshold for engaging the discretion under Rule 37(5), but the outcome ultimately turned on the EAT’s correspondence in this case.

In light of Melki, it was accepted that the omission constituted a “minor error” within Rule 37(5). The issue was whether, having regard to all the circumstances, it was just to extend time.

The Respondent contended that the delay and the absence of a good explanation for the failure to provide the correct document in December 2022 rendered it unjust to extend time. The Appellant relied on the EAT’s correspondence and his prompt response once the defect was identified.

Allowing the appeal, the Court of Appeal held that the EAT had erred in its approach to the exercise of discretion. In the context of the earlier correspondence, the EAT’s letter of 11 January 2023 would lead a reasonable reader to conclude that the appeal had been properly instituted and that no further action was required. In those circumstances, the period prior to March 2023 was not attributable to the Appellant.

The Court also noted that, once the defect was identified, the Appellant acted promptly in remedying it. Having regard to all the circumstances, it was just to extend time.

The decision suggests that, in applying Rule 37(5), the attribution of delay will depend on when an appellant is put on notice of a defect and how promptly it is then rectified, and that Tribunal correspondence may be a material factor in that assessment.

 Bayo Randle appeared for the Respondent