• 28th June 2017

Can an appellant to the EAT rely on vague medical evidence to get an extension of time for a late appeal?

No, held the EAT in J v K.

J appealed against the strike-out of his discrimination claim. He sent in his Notice of Appeal before the 4pm deadline on the final day, but the file was rejected as it was too big for the EAT’s server. He completed transmission of his Notice of Appeal in several smaller files by 5pm. The appeal was therefore deemed lodged late, on the next working day. J argued that time should be extended due to his depression, without providing specific medical evidence, and that his appeal could be let in under rule 39 (1), which provides that ‘proceedings’ are not invalidated by a breach of the EAT’s Rules unless the EAT so directs.

J’s medical evidence (including extracts from the US Department of Veterans Affairs website) was not specific to him. Forensic medical evidence about a failure to meet the EAT’s strict time limits could not be ”off the peg” but must be “bespoke” and “fit the individual case” to explain why an Appellant could not have lodged an appeal in time. Rule 39 (1) only applied once proceeding’ had been lodged correctly under Rule 37, so it could not help the Claimant.