O’Cathail v Transport for London [2012] EWCA Civ 1004

Facts

C suffers from depression, anxiety and panic attacks exacerbated by court hearings. C brought claims for
disability discrimination, failure to make reasonable adjustments and harassment against R, and won in
part. The parties were notified of the decision on 16 December 2009 and the deadline for appealing was
27 January 2010. C lodged his notice of appeal form on 26 January 2010 but failed to lodge other
documents required by the EAT for the institution of an appeal. The stress caused C to have a panic attack
and he was ill on 27 January but managed to post the written reasons by special delivery . The missing
documents were emailed across on 28 January. The appeal was rejected as out of time and an application
for an extension of time by one day was refused by the Registrar on the basis that there was no
exceptional reason why the appeal could not have been presented in time. C appealed to the EAT who
rejected his appeal, on the grounds that although his disability was a contributory factor it was not the
reason for his failure to lodge the appeal in time, which was that he had left it to the very last minute.

Held

The Court of Appeal (LJ Mummery) upheld the decision of the EAT. The Court of Appeal has no power to
set aside an order of the EAT made in the exercise of its discretion unless it is shown to be wrong or
procedurally irregular. LJ Mummery agreed that C had lodged his notice of appeal form in time, that the
required documents were only one day out of time, that C suffered from a recognised disability and that
his disability was a contributory factor in his inability to travel on the 27 January but not to his delay in
lodging the documents. However, it was held that C had not demonstrated that the EAT’s refusal to
extend time was wrong or that it had erred in principle. Moreover, C had made serious allegations, such
as that there had been procedural unfairness and irregularity, perversity and humiliating and degrading
treatment without any basis in law or fact. These allegations should not have been made and although the
Court of Appeal sympathised with the stresses on a litigant in person they stressed that this could never
justify baseless accusations of misconduct against the ET, EAT or Tribunals Service.

Comment

This decision of the Court of Appeal is illustrative of the harsh approach that the higher courts will take if
an appeal is lodged out of time. Claimants and respondents should both be aware and especially careful to
ensure that they lodge a properly constituted appeal within the requisite time limit of 42 days.