Court of Appeal considers new EAT rule on extensions of time for ‘minor errors’
The Court of Appeal has given judgment in Melki v Bouygues E & S Contracting UK Ltd [2025] EWCA Civ 585, allowing the Appellant’s appeal against the refusal by the EAT to extend time to permit the Appellant to present an out of time appeal to the EAT. This decision impacts applications for extensions of time to lodge EAT appeals where part of a document has been omitted when lodging the notice of appeal.
The Appellant brought unsuccessful claims of race discrimination in the Employment Tribunal. He attempted to appeal to the EAT – emailing his notice of appeal and various attachments. At that time (May 2022), rule 3(1)(b) of the EAT Rules 1993 required appellants to lodge a copy of any claim and response with the notice of appeal. The Appellant lodged the form ET3 but not its ground of resistance, as required by the EAT’s then Practice Direction. The Appellant telephoned the EAT shortly after the deadline and immediately emailed the grounds of resistance. His appeal was properly instituted six days late.
In August 2023, EAT Registrar refused to extend time under the general power to extend time in rule 37(1). The Appellant appealed against that refusal. That Appeal was heard by Mr Andrew Burns KC, sitting in the EAT as a Deputy Judge of the High Court. By the time of that appeal, the EAT rules has been amended to introduce new rule 37(5), which grants the EAT a discretion to extend time where appellants have made a ‘minor error’ in complying with rule 3(1), which has been rectified, and where it is just to do so in all the circumstances. The EAT concluded that although the Appellant’s appeal had been lodged before rule 37(5) had been enacted, rule 37(5) nevertheless applied. However, the EAT concluded that the Appellant’s error was not minor. The EAT interpreted a minor error as “something that is comparatively unimportant. In the context of this rule it can be contrasted with a serious or substantial error. Rule 37(5) is designed to forgive errors which are negligible or of no real importance to the proper progress of an appeal.” The EAT also decline to extend time under rule 37(1) which the Court of Appeal upheld.
However, the Court of Appeal disagreed with the EAT’s interpretation of ‘minor error’. Elizabeth Laing LJ held that minor was a comparative adjective, the opposite of ‘major’ and whether an error is ‘minor’ must be answered in the context of compliance with rule 3(1). Whether the omitted document was of no real importance to the proper progress of the appeal involved an impermissible gloss on rule 37(5). She concluded that “on any view,” the Appellant’s error was minor, but she declined to give any guidance on what amounts to a ‘minor error,’ leaving it to the EAT to develop such guidance.
Underhill LJ concluded that the error was minor because it “did not involve wholesale non-compliance with rule 3(1)(b).” He concluded that the EAT should have extended time because the Appellant had failed to serve only part of a document, had promptly rectified his error and there was no prejudice to the Respondent. Underhill LJ also declined to give any general guidance on the meaning of ‘minor error’. Baker LJ agreed with both judgments.
Practitioners will have to wait for the EAT to develop guidance on the meaning of ‘minor error’ in the new context where the new Practice Direction provides that only the judgment and written reasons must be lodged with the appeal. Until that guidance is developed, they are likely to look to the judgment of Underhill LJ as providing at least an example of a minor error i.e. where part of a document has been omitted.
Back to News
