Permission to Amend Notices of Appeal

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

Should an Appellant to the EAT be permitted to amend a Notice of Appeal in a Rule 3 (10) hearing?

'Yes, generally' states the EAT (Underhill P) in Readman v Devon Primary Care Trust, holding that it will generally be in the interests of justice to allow an application to amend a notice of appeal at a 3 (10) hearing.

A Rule 3 (10) hearing permits an Appellant whose Notice of Appeal has been rejected on the sift as showing no material error of law to argue that the appeal ought to proceed as having a reasonably arguable point of law.

The Claimant appealed after failing in her claim for a redundancy payment at Employment Tribunal. The Claimant's Notice of Appeal had been rejected both on the sift and after amendment under Rule 3 (8), and she requested a 3 (10) hearing. With assistance from Counsel via ELAAS, the Claimant successfully applied to amend the Notice of Appeal to include a reasonably arguable point. The Respondent then applied unsuccessfully to set the amendment aside. The EAT considered the leading case on amendments in appeals of Khudados (see bulletin 24th March 2005) and gave guidance on the approach to amendments at a 3 (10) hearing.

The EAT observed that unrepresented Appellants often appeal without showing proper grounds, and a 3 (10) hearing will often be the first point at which they have a practical opportunity to obtain professional advice, when arguable points may emerge, requiring permission to amend. The EAT noted that amendments could include points not raised previously in a Notice of Appeal, provided that they were reasonably arguable. It would be exceptional to not permit amendments at a 3 (10) hearing, as Appellants rarely go there by choice.

The EAT was mindful of the delay arising from this procedure, but held that in this case, it did not outweigh the right to have an appeal determined. The EAT also suggested that Respondents wishing to object to an amendment would be better to raise their objection at the full hearing with the substantive appeal rather than risk the delay and cost of an interim hearing.

The EAT also noted that the right to amend a Notice of Appeal under Rule 3 (8) is absolute.