The EAT has concluded that the strict time-limits on starting an appeal apply equally to cross-appeals.

This provides an excellent opportunity to reiterate that the EAT’s approach to time-limits in relation to appeals is rigourous and that anyone who wants to appeal must make sure that they meet them. Trying to get an appeal in late is extremely difficult, verging on impossible.

This advise now applies equally to cross-appeals. If you are late, you are likely to be in the frustrating position of watching the other side’s appeal proceed, while yours is knocked out before it gets off the ground.

Slingsby v Griffith Smith Solicitors

The Court of Appeal has issued a sharp reminder of the limits of the Burns / Barke procedure.

The Burns / Barke processes (named from the cases of Burns v. Royal Mail Group plc and Barke v. SEETEC Business Technology Centre Ltd) is the system by which the Employment Appeal Tribunal may ask an Employment Tribunal questions to clarifying their reasoning.

The Court of Appeal makes two points.

Firstly, it is important for the EAT to focus its questions and clearly identify where the ET’s reasoning may be inadequate. It is not appropriate to ask a general question or to ask the ET to supplement its decision if it has already adequately explained its reasoning.

Secondly, the ET must be careful to limit itself to answering the questions asked by the EAT. It must be careful not to act as an advocate for its own decision. In this case, the ET provided notes of evidence and commented directly on the notice of appeal. This, the Court of Appeal, concluded went beyond the scope of the Burns / Barke process.

What does this mean for those appearing in the EAT when are Burns / Barke procedure is followed?

At the point at which questions are being formulated it is appropriate to make submissions on the wording of the question. This should, as the Court of Appeal says, narrowly worded and focused on the ET’s reasoning.

If the ET does go beyond the scope of the Burns / Barke rule, you should make submissions that this additional material cannot be used to correct a flawed decision. The purpose of the Burns / Barke process is to allow the tribunal to clarify their existing decision; not to allow them to write a new one.

Woodhouse School v Webster

The Court of Appeal has commented on the proper use of skeleton arguments in Tombstone Ltd v Raja & Heals.

Although the case had nothing to do with employment law, the comments are relevant to skeleton arguments generally – in the EAT as well as the Court of Appeal.

The full comments of the Court are set out below. In summary, they warn against excessive length and make clear that skeleton arguments are intended as an aid to oral advocacy.

This is not straightforward. It is clear that in Tombstone itself the skeleton was too long. It is also true that a concise and focused argument will be more persuasive than a verbose one.

On the other hand, taking the guidance in Tombstone too much to heart is probably a mistake. In our experience, ’skeleton’ arguments do now almost invariably amount to full written submissions capable of standing alone. Whether that’s a good thing is open to debate; but the reality is that the members of appellate courts will normally have read the skeletons and formed at least a provisional view before the hearing begins. That means you have to do a lot of the work of persuading them in your skeleton – especially as the chances are your opponent will have.

If some judges will bark at you for producing an excessively fleshy skeleton, others will raise an eyebrow if you try to say anything in oral submissions that isn’t covered in your skeleton – or, worse, make up their minds on the written material and then scarcely let you get a word in edgeways once you’re on your feet.

The key is to understand that a well written skeleton can make your whole argument, without becoming over long.

Lord Justice Mummery said:

122. We end this judgment with a criticism of the excessive length and complexity of Tombstone’s skeleton argument. It has 110 pages of text plus 64 pages of Appendices. Although its authors set out to assist the court, as well as the client, by a very thorough presentation of Tombstone’s case, it is sensible to set reasonable limits to its length.

123. Mr Onslow described it “as an extremely long document” for a case that, while unusual, was not unduly complex. The appeal was from a judgment of modest length (27 pages). It was very hard, he said, to see what justified such voluminous arguments. Most of the legal issues have been settled by existing authority. No primary findings of fact are challenged on the appeal. He added that, from Healys’ perspective, this had added to the length of their skeleton argument (56 pages), which they had tried to keep as short as possible. It had also added considerably to the cost and length of the appeal.

124. The length of Tombstone’s skeleton did not assist the court. In fact, it tended to detract from Tombstone’s case, which was accurately and far more succinctly stated by Mr Onslow in his written and oral responses to it. His team adopted the technique of briefly stating the points taken by Tombstone and then concisely commenting on them.

125. Practitioners who ignore practice directions on skeleton arguments (see CPR 52PD paras 5.10 “Each point should be stated as concisely as the nature of the case allows”) and do so without the imposition of any formal penalty are well advised to note the risk of the court’s negative reaction to unnecessarily long written submissions. The skeleton argument procedure was introduced to assist the court, as well as the parties, by improving preparations for, and the efficiency of, adversarial oral hearings, which remain central to this court’s public role.

126. We remind practitioners that skeleton arguments should not be prepared as verbatim scripts to be read out in public or as footnoted theses to be read in private. Good skeleton arguments are tools with practical uses: an agenda for the hearing, a summary of the main points, propositions and arguments to be developed orally, a useful way of noting citations and references, a convenient place for making cross references, a time-saving means of avoiding unnecessary dictation to the court and laborious and pointless note-taking by the court.

127. Skeleton arguments are aids to oral advocacy. They are not written briefs which are used in some jurisdictions as substitutes for oral advocacy. An unintended and unfortunate side effect of the growth in written advocacy (written opening and closing submissions and “speaking notes”, as well as skeleton arguments) has been that too many practitioners, at increased cost to their clients and diminishing assistance to the court, burden their opponents and the court with written briefs. They are anything but brief. The result is that there is no real saving of legal costs, or of precious hearing, reading and writing time. As has happened in this case, the opponent’s skeleton argument becomes longer and the judgment reflecting the lengthy written submissions tends to be longer than is really necessary to explain to the parties why they have won or lost an appeal.

128. The skeletal nature of written advocacy is in danger of being overlooked. In some cases we are weighed down by the skeleton arguments and when we dare to complain about the time they take up, we are sometimes told that we can read them “in our own time” after the hearing. In our judgment, this is not what appellate advocacy is about, or ought to be about, in this court.

This is case about a notice to appeal that was rejected on the sift. The appellant then applied for an oral hearing, where the appeal was again rejected.

The facts and issues in this case are of limited general interest, but the judgment is significant because it sets out how the EAT Judges see the application to appeal process.

The EAT sets out the appeal process in detail, but briefly:

An appellant has a right of appeal to the EAT. Unlike the Court of Appeal, it is not necessary to apply for permission to appeal. If a properly constituted appeal is received within the 42 days time limit it is then put through “the sift”. This means that a Judge considers the papers and decides whether the appeal contains reasonable ground for bringing the appeal. If he decides it does, it will be listed for a full hearing. If not it will be notified that their appeal contains no arguable point.

At that point the litigant has three options: they may accept that decision by doing nothing; they may put in a new notice of appeal, or they may apply for an oral hearing. These oral hearings are often called 3(10) hearings, by reference to the relevant part of the EAT rules.

This judgment makes a number of points:

• An oral hearing is a fresh consideration of the appeal. It is not an appeal from the original decision on paper. This means in practice, it is fruitless to criticise the approach take by the first judge. The point is to show that the appeal has merit in and of itself.
• The choice between serving a new notice of appeal and requesting an oral hearing is not mutually exclusive. You may put in a new notice and have that considered. If it is rejected, you may then apply for an oral hearing.
• You cannot, however, submit a third notice of appeal if the second is rejected.
• Where a new notice of appeal is lodged it will normally be considered by the same judge who ruled on the initial appeal.
• Where there is an oral hearing it will normally be heard by a different judge.
• The 42 days time limit is a long and generous one. This is something that seems self-evident to Judges, but not necessarily to litigants. This is because Judges are aware of other similar time limits, which are much shorter.

Judge McMullen also indulges in a brief rant against the use of latin. He notes that:

Lord Woolf directed lawyers and judges to avoid Latin. … Latin should not be used in court unless English is deficient, because it creates distance and mystery to non-lawyers.

This is sound advice (especially if you are appearing before Judge McMullen). This case is a good example of the potential pitfalls, since the EAT found that the appellant had a. chosen the wrong Latin maxim to express his complaint and b. spelt it wrong. These problems are much easier to avoid if you stick to English.

Haritaki v South England Development Agency

It is a good general rule (probably in life, but certainly in litigation) to make your best points and then stop. It will be very rare indeed that there are more than half a dozen or so really good points in any case. Good points get rarer on appeal: if you find yourself drafting a notice of appeal that runs to more than 4 or 5 separate grounds, the chances are that your appeal is a weak one.

There are exceptions of course. Occasionally there is an employment tribunal decision so bad that there is an almost infinite number of ways of describing what’s wrong with it. If you’re faced with one of those, your task is quite hard: drafting grounds of appeal will feel a bit like performing an autopsy on a frog that’s been through a liquidiser. It’s clearly not a functioning frog any more – it’s frog puree – but how to put a finger on what precisely is wrong with it? But even in that kind of case, you will do better to make your 3 or 4 best points – you only need to win the case once, after all.

Many appeal cases are not finally resolved by Employment Appeal Tribunal. So when running an appeal case, you need to consider the possibility of it returning to the tribunal. Lawyers describe this as a case being remitted.

The best way of deciding whether the EAT will remit a case is to consider what decisions they are in a position to make.

If the only decisions are legal ones, about what the applicable law is, the appeal court will be able to make these decisions and issue a final judgment. If there will be need to be further findings of fact, the EAT is unlikely to be able to reach useful conclusions. They did not hear the original evidence and will generally not hear evidence during the appeal hearing. They are simply not able to make sensible decisions about which witnesses to believe or whose testimony to accept.

If a case is likely to be remitted, it is important to remember that what matters is the final outcome of the case, not just the outcome of the appeal.

This means that some appeals should not be started, even where the tribunal has erred in law, because the chances of victory in the remitted hearing are remote. It is not sensible to go through the stress of continuing the litigation if, after the appeal and a rehearing, you are going to be left exactly where you started.

It also means that you should give some thought to what will happen once you get back to the tribunal. In some cases it will matter very much which ground of appeal you win on, because one ground is more likely to give you victory in the tribunal than another.

You should also consider whether the EAT will send the case back to the same tribunal or to a different one – and what you want them to do. This needs to be done carefully. Appellants will normally want a new tribunal. After all, the old one decided against them. The EAT, on the other hand, will be reluctant to restart a case from scratch without a good reason.

Finally, bear in in mind that a successful appeal is often a decision point on settlement. People often do not want to return to the tribunal. And appeals often clarify the issues to the point that settlement becomes possible. It is worth being ready to respond to an offer from the other side or to make one yourself, once you have the decision.

In RBS v Bevan, the EAT considered an appeal against an employment tribunal’s decision that it had not been reasonably practicable for the claimant to present his claim within the first 3 months from dismissal in circumstances where he did not hear of the failure of his internal appeal against dismissal until 5 hours before the expiry of the time limit.

The Employment Act 2002 (Dispute Resolution Regulations) 2004 provide an extension of time by 3 months in circumstances where at the time when the initial 3 month period expires the claimant reasonably believes that an internal appeal is still in progress. Mr Bevan did not get the extension, because by the time the initial 3 months expired he was aware that his internal appeal had failed – even though only just. The question was therefore whether it had been reasonably practicable for him to present his claim in time. It was argued that it was – because there was nothing to prevent him from presenting his claim before he knew the result of the internal appeal, although he might prefer not to.

The EAT held that the employment tribunal had been entitled to find that it was not reasonably practicable for Mr Bevan to present his claim in time. Both the employment tribunal and the EAT may have been influenced by a suspicion (which emerges quite clearly without being stated) that the employer may have deliberately timed its announcement of the outcome of the appeal for the last day of the original period in the hope that it might induce Mr Bevan to miss the deadline.

Although the outcome is clearly just, it is difficult to reconcile it with the statutory provisions: rather, it appears to be an expression of the view that it ought to be permissible to extend time for an unfair dismissal claim on the grounds that it is ‘just and equitable’ in all the circumstances to do so. This is the basis on which time can be extended for discrimination claims; it is difficult to see any good reason for the tougher requirement in unfair dismissal cases to show that it was not ‘reasonably practicable’ to present the claim in time.

In general, any good ground of appeal is capable of being summarised in a single sentence.

It is useful to do this. It acts as a check that you have identified a proper error of law. With very rare exceptions, errors of law do come down to a simple mistake that can be briefly stated. If you cannot produce a few brief sentences that summarise your complaint then something is wrong. It is likely that either you have not identified a real error of law, or that you have the beginnings of an idea, but have not properly defined the error yet.

A simply stated error of law also assists the appeal court, and increases your chances of success. If the judge can immediately understand what it is you complain of, he will find it much easier to follow your argument.

Some examples, taken from recent EAT cases:

• The tribunal treated a failure to consider reasonable adjustments as a failure to make reasonable adjustments.
• When considering whether it was not reasonably practicable to bring the claim in time, the tribunal failed to take account of what knowledge the claimant would have had if he had made reasonable investigations
• The tribunal failed to make relevant findings of fact to support its conclusion that the claimant was redundant

Of course, all these appeals would need far more explanation and justification to succeed, but the starting point is a single sentence summarising the point of appeal.

Mushett v London Borough of Hounslow gives valuable guidance on when the EAT will extend the deadline for lodging an appeal.

The EAT laid out a series of principles that it would apply. In summary these are:

• It is in the parties and the publics interest that the result of litigation should final and certain. This means that the approach to time limits should be stricter on appeal that at first instance.
• An extension of time will only be granted if the EAT is satisfied that there is a full honest and acceptable explanation for the delay
• The 42 day time limit will only be relaxed in rare and exceptional cases. There is no excuse, even for an unrepresented party, for ignorance of the time limit
• The EAT will consider the length of the delay and be aware of the possibility of procedural abuse or intentional default
• The EAT will look at the whole period during which the appeal could have been lodged. This means that time will not be automatically extended if the appellant can show that it was impossible to present the appeal during the last week. The EAT might conclude that the appeal should have been presented during the first five weeks of the period. The decision will depend on the facts of each case.

The judgment also sets out the facts of the joined cases. It is worth noting that three of the four appeals were rejected. This underlines the key point to take from this case: make absolutely certain that any appeal is lodged well within time. The EAT’s approach to the deadline to appeal is strict and it will normally be impossible to persuade them to allow a late appeal.

Even if you are encountering problems, for example, in formulating the legal argument or obtaining legal advice, it is much better to put in a mediocre appeal, than to risk missing the deadline. It will be easier to improve a rushed appeal – even to the extent of putting in new grounds – than it would be to get permission for a late appeal.

One final note, always remember that an appeal has only been validly lodged if it contains all the documents required by s3 Employment Appeal Rules. The easiest way to make sure of this is to use the appeal form provided by the EAT, which contains a checklist of the required documents. An appeal without the correct documents attached will not be valid and, unless the mistake can be corrected within the normal time limit, will be considered late.

Mushett v London Borough of Hounslow

In Secretary of State for Health & ors v Rance & ors [2007] IRLR 665, HHJ McMullen reviews the authorities on when the EAT will be prepared to entertain a new point of law or permit a concession to be withdrawn, and sets out at paragraph 50 of his judgment the principles that he draws from them, as well as finding 3 new relevant factors in Rance itself.

Unfortunately, there is no attempt in the judgment to reconcile the sometimes contradictory principles listed. The true rule would still seem to be that the EAT will allow new points of law to be argued if it feels like it.