The 2023 amendment of the EAT Rules introduced a new power for the EAT to extend time where a minor error to submit relevant documents with the Notice of Appeal has been rectified and it is just to extend time having regard to all the circumstances. The amended EAT Rules came into force on 30 September 2023 and from that date the new rule 37(5) applied to all appeals not only to those appeals which were instituted after 30 September 2023.

The Claimant appealed the order of the Registrar refusing his application to extend time to present his notice of appeal. The Notice of Appeal was served but the Respondent’s ET3 Response form was attached omitting the Grounds of Resistance which formed an important part of the Response. The Claimant rectified the error by serving the Grounds of Resistance 6 days out of time.

The EAT applied rule 37(5) but held that this was not a minor error in complying with the requirement to submit the relevant documents. The EAT therefore could not extend time under rule 37(5).

Applying the rule 37(1) test in the alternative, there was no good explanation or excuse for the failure to submit the Grounds of Resistance. There were no exceptional circumstances to justify an extension of time. The Appeal against the Registrar’s order was dismissed.

[Summary reproduced from the judgment]