Leaving a page out of the reasons for an EAT appeal was pardonable (under the circumstances)

Hine & Anor (t/a Hine Marketing Partnership) v Talbot & Ors [2011] UKEAT 1783_10_2706

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29/08/2011

HJ McMullen of the EAT has ruled in Hine Marketing Partnership v Talbot & Ors that an EAT appeal could go ahead despite the Notice of Appeal having been lodged a few days late and therefore out of time.

The decision of the Deputy Registrar who had rejected acceptance of the appeal was overturned for the following reasons:

  • There was an arguable case to make out and that although the actual missing page (5) of the judgment was important the mistake itself was venial. The essential dispute between the parties was notwithstanding the mistake capable of being adduced.
  • That the error was not that of the Appellant but that of the instructed solicitor's office whereby scanned documents had stuck together (albeit this was an inexcusable mistake of the solicitor's office which had no system to verify that all the scanned documents sent through the DX system were actually sent, and then received in their entirety. A secretary checking with the EAT office failed to ascertain that the documents were in fact received, a step that should be remembered by workers. Always get proof of sending, and try to verify the receipt by signature or by telephone with a named person) there had been an error made by the office of the instructing solicitor.
  • The EAT has wider discretion than the ET where the test is that of what is reasonably practicable, and where the fault of an adviser will often leave the Claimant only with a claim of negligence against the adviser acting for him. The EAT along with the other factors in this case meant that discretion could be exercised.

Judge McMullen followed the rulings in Muschett v London Borough of Hounslow [2009] and Miller v Lambeth PCT [2010] UKEAT/0943/10 (paragraphs 5 and 15)ICR 424 as approved by the Court of Appeal.

In Woods v Suffolk Mental Health Partnership NHS Trust [2007] EWCA Civ 1180 the Court of Appeal approved HHJ Peter Clark’s decision in refusing to exercise his discretion in the absence of two pages of the claim form. He would did allow the claim when only one page was missing as in Nationwide Leisure Ltd v Parnham [2009] UKEATPA/0724/09. 

Claimants should try to avoid submitting documents at the last minute. In this case the missing page submitted at 4.41pm on the second day of 9 December 2010 was considered served (delivered) three days late as anything received after 4.00pm is considered as received the day after.

 

The appeal was allowed.
Transcript of the judgement:-   Hine & Anor (t/a Hine Marketing Partnership) v Talbot & Ors [2011] UKEAT 1783_10_2706  
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Some recent employment cases:-
2011
An employee sharing profits in the firm is not necessarily a partner - Williamson & Soden Solicitors v Briars EAT [2011] UKEAT/2011/0065_10_2705
Leaving a page out of the reasons for an EAT appeal was venial - Hine & Anor (t/a Hine Marketing Partnership) v Talbot & Ors [2011] UKEAT 1783_10_2706
In Equal Pay claims after a TUPE transfer, red circling will be accepted as constituting a genuine material factor defence - Scotland Co Ltd v Buchanan & Anor (Equal Pay Act : Material factor defence and justification) [2011] UKEAT 0042_10_2505
The Minimum wage did not apply to a worker sleeping over without duties to perform - Wray v JW Lees & Co (Brewers) Ltd (National Minimum Wage [2011] UKEAT 0102_11_1407
Requests to continue working after 65 must be considered in good faith - Compass Group Plc v Ayodele [2011] UKEAT 0484_10_1407
An autocratic style of management is no justification for breaching the contractual term of trust and confidence - McBride v Falkirk Football & Athletic Club [2011] UKEAT 0058_10_1706
Overtime payments in the absence of an agreement - Driver v Air India Ltd [2011] EWCA Civ 830
Mere suspicion that a representative was acting for profit was not enough for imposing wasted costs - Jackson v Cambridgeshire County Council & Ors (Practice and Procedure : Costs) [2011] UKEAT 0402_09_0806
Guard disallowed from leaving his work to pray was not discriminated against - Cherfi v G4S Security Services Ltd (Religion or Belief Discrimination) [2011] UKEAT 0379_10_2405
Judicial proceedings immunity applies to all types of discrimination including victimisation - Parmer v East Leicester Medical Practice (Victimisation Discrimination) [2011] UKEAT 0490_10_0103
An abused worker's unfair dismissal and race discrimination claim was refused for illegality - Allen (Nee Aboyade-Cole) v Hounga & Anor [2011] UKEAT 0326_10_3103
Pay protection may be a proportionate means of achieving a legitimate aim provided that sums awarded don't result from past discrimination. - Audit Commission v Haq & Ors [2011] UKEAT 0123_10_1803
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