Important Case on Applications to Amend Notices of Appeal to the EAT

The Employment Appeal Tribunal has, in Khudados v Leggatte & ors, set out the principles to be adopted when it considers an application for permission to amend a Notice of Appeal.

Ms Khudados, a registrar whose career as a nuerosurgeon was not progessing as quickly as she would like, brought and lost a complex sex and race discrimination claim. She presented a Notice of Appeal which contained various clear and self-contained grounds. After the appeal was listed for a preliminary hearing, the Appellant wrote to the Registrar and 'reserved the right' to make amendments to the Notice of Appeal.

The draft amended Notice of Appeal was served four and a half months after the original Notice of Appeal was lodged. It contained 26 new pages containing new allegations of perversity. The effect of the new allegations was to require detailed consideration of the several weeks of testimony, and five lever-arch files of documentation, which had been before the employment tribunal.

At the hearing of the application for permission to amend, the delay was explained on the basis of the extreme complexity of the case (Ms Khudados had represented herself before the employment tribunal and needed to provide detailed explanations to her legal team as to why she was claiming perversity on so many grounds), coupled with the inevitable delay caused by other professional commitments of Counsel involved.

In a very thorough and robust decision, the EAT (HHJ Serota presiding) refused permission to amend and set out the principles the EAT should adopt. They include, at paragraphs 82-87:

• the Practice direction requires applications to amend to be made as soon as the need for amendment is known. This is not an aspiration - it is a requirement. Parties cannot 'reserve' a right to amend;
• the EAT's approach to dealing with time limits on appeals is stricter than that of the Court of Appeal; the EAT has now reduced the average waiting time between presentation of a Notice of Appeal and a final hearing, where no preliminary hearing is required, to between two and three months;
• the EAT takes a strict view of anything that might delay a final hearing, particularly where there has been non-compliance with a rule of the Practice Direction. A crisp point of law related to existing grounds of appeal is more likely to be permitted than wholly new grounds of perversity which raise complex issues of fact;
• the regime in the EAT is still largely 'costs-free', unlike in the Court of Appeal where the Court can compensate a party for delay and cost caused by the other side;
• the merits of the proposed amendments are relevant, in that they must pass a 'reasonable prospect of success' threshold;
• an extension of time is an indulgence.

The EAT specifically rejected the submission that the overriding objective requires a party to be allowed to ventilate any good ground of appeal he may wish to bring.

Khudados v Leggatte & ors.