Case - Khudados v. Leggate

[2005] IRLR 540, Employment Appeal Tribunal - John Hendy QC

On the facts, it was not appropriate to allow the appellant to amend a notice of appeal. The appellant's delay in applying to amend the notice was excessive, inexcusable and represented a failure to comply with Practice Direction (Employment Appeal Tribunal - Procedure) 2002, para 2(6).

The appellant (K), a surgeon, applied for permission to amend a notice of appeal. K had brought an action against the respondents (R) in the employment tribunal on the grounds of discrimination under the Sex Discrimination Act 1975 and the Race Relations Act 1976. The action was based on issues K encountered in attempting to secure consultant neurosurgeon status. The tribunal concluded that there was no discrimination against K. In November 2003, K submitted a notice of appeal from the tribunal's decision. In January 2004, K notified the Employment Appeal Tribunal of her intention to amend the notice of appeal. In April 2004, K submitted her amended notice of appeal to the EAT and R. K submitted that: (1) the delay in amending the notice of appeal was reasonable, and in any event it was not appropriate to apply the strict rules relating to the time for bringing an appeal; (2) R suffered no prejudice in allowing amendments to the notice of appeal; (3) justice required that the amended grounds of appeal be ventilated. R submitted that the application for permission to amend was an offence against the overriding objective having regard to the obligation to save expense and deal with cases in a manner proportionate to their complexity and expeditiously.


HELD: (1) The EAT was not satisfied that K attempted to comply with Practice Direction (Employment Appeal Tribunal - Procedure) 2002, para 2(6); applications to amend a notice of appeal should be made as soon as the need for amendment is known. The amended notice of appeal was served some four-and-a-half months' after it was known that the original notice required amendment. The delay was excessive and K provided no adequate explanation for it.(2) The EAT was satisfied that R would suffer prejudice in allowing amendments to the notice of appeal.(3) Justice required fairness to all sides and to the interests of the public in the efficient administration of courts and tribunals. The merits of the proposed amendments alone were not a determining factor in the decision as to whether permission to amend should be given. Even if the EAT was satisfied that the proposed amendments raised a point of law that would give a reasonable prospect of success at a full hearing, it would nevertheless refuse to allow them on the basis of the delay in bringing the amendments and, in the alternative, the prejudice R would suffer.

Application refused.

Counsel:
For the appellant: John Hendy QC
For the respondents: C D'Souza
Solicitors:
For the appellant: Richard Price & Co (Sheffield)
For the respondents: Department of Health Solicitor.
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