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New EAT Practice Direction

The EAT has produced a new practice direction. This replaces the previous (2004) practice direction from the 22nd May 2008.

There is no radical change. Cases before the EAT will be dealt with in substantially the same way as before. But it is important to be aware of the changes, particularly those relating to time-limits.

As well as minor alterations of wording and cross-references, the following changes have been made:

3.7. Applications to extend time

Jurkowska v HI Mad [2008] EWCA Civ 321 has added to the list of cases that the EAT will have regard to when considering an application to extend time.

6.1. Retention of hearing papers

The EAT will not retain bundles used at one hearing for later use. This expands on the previous rule that the EAT would not retain bundles used at a preliminary hearing for a full hearing.

6.6. Deadlines for bundles

The time-limit for providing hearing bundles for full-hearings has been reduced from 35 days from the seal date of the order to 28 days.

9.18. Case Categories

The EAT separates cases into groups according to their complexity and legal importance. The four categories have been reduced to three.

P: Cases that should be heard in the President’s list.
A: Complex cases or those raising legal points of public importance.
B: Any other cases.

There was previously a category C, which appears to have been subsumed by B.

9.21. Fast Track Cases

Category B cases that should take 2 hours or less are now eligible to be assigned to the Fast Track. This reflects the removal of category C.

13.9.2. Deadlines for skeleton arguments

Skeletons arguments for full-hearings must now be provided 14 days before the hearing, down from 21 days.

14.6. Copies of authorities

Authorities in preliminary hearings; appeals against orders by the Registrar and 3(10) hearings must be provided at least 10 days before the hearing. Previously these could be provided on the day of the hearing.

18.1. Costs Applications

The rule that, if judgment was reserved, a party wishing to make an application for costs should inform the EAT 48 hours before judgment being handed down has been removed.

This has left the proper timing of such an application rather obscure. Rule 18 refers to rule 19, which refers back to rule 18.3, which doesn’t deal with time limits.

Guidance is given elsewhere. s34(4) of the Employment Appeal Tribunal Rules 1993 requires that applications for costs be made within 14 days of the order determining the appeal being sent to the parties.

The more sensible course, however, will generally be to make the application in advance as before. As well as eliminating the time-limit issue, this will avoid delay, since a judge will be available then to hear it when the judgment is handed down.

The exception to this rule is when you want to see the judgment before deciding whether to apply for costs. For example, if your application will be on the basis that the other-side’s appeal was misconceived it will be fruitless if the judgment begins “This was a difficult case, with strong arguments being made by both sides.”

20.1. Applications for review

The 14 day time-limit on applying for a review, previously found only in the rules, is now explicitly stated in the practice direction.

21.1. Appeals from the EAT

Permission to appeal to the Court of Appeal should now be sought from the EAT within 7 days of their judgment or from the Court of Appeal itself within 21 days.

This has the effect of shorting the time to apply to the EAT while increasing the time to apply to the Court of Appeal. Previously the time-limit for both was 14 days. This brings the practice direction into line with the Civil Procedure Rules..

22. Conciliation

A new section on conciliation has been added, requiring the parties to consider conciliation by ACAS if directed to do so by a judge and to report on the steps taken to achieve conciliation.

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