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.