EAT Provides First Guidance on New Rule 37(5)

Andrew Burns KC, sitting as a deputy High Court judge, has handed down judgment in the first EAT appeal to consider the new power under rule 37(5) for the EAT to extent time to comply with the requirement to submit certain documents with the notice of appeal.

The new power under rule 37(5), introduced with effect from 30 September 2023, permits the EAT to extend time where the appellant has made a minor error in complying with the requirement to submit relevant documents, which error has been rectified, and where the EAT considers it would be just in all the circumstances for time to be extended.

In this appeal, the appellant had failed to submit the grounds of resistance with the notice of appeal (a requirement which has since been removed), submitted the grounds of resistance out of time, and made an application to the registrar for an extension of time, which was denied. All of this occurred prior to 30 September 2023. The hearing of the appeal against the registrar’s order occurred after 30 September 2023. The EAT nevertheless concluded that it was able to exercise the rule 37(5) power as there was no general presumption that statutory amendments which concerned matters of procedural rather than substantive rights would not have retrospective effect.

The EAT went on to conclude that the appellant’s error was not minor, so that it could not exercise the rule 37(5) power. The EAT provided some general guidance on what constitutes a minor error and endorsed the statement of HHJ Auerbach in Anghel v Middlesex University [2022] EAT 176, that grounds of claim were an ‘essential’ document, and concluded that grounds of resistance were a similarly ‘essential’ document.

Colm Kelly represented the respondent employer.

The decision can be found in full here.

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EAT Provides First Guidance on New Rule 37(5)

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