Kerry Underwood

DIGITAL COURTS AND THE 10MB LIMIT: NODDY BECOMES AN EMPLOYMENT APPEAL TRIBUNAL JUDGE

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A bizarre, almost unbelievable, situation was dealt with by the Court of Appeal in

J v K & Anor [2019] EWCA Civ 5 (22 January 2019) .

The claimant brought Employment Tribunal proceedings which were struck out and he wished to appeal but the Employment Appeal Tribunal’s server was unable to accept emails and attachments of more than 10mb.

In a guide published on the gov.uk website, there was a warning about this and parties to an Employment Tribunal decision are sent a covering letter referring them to a booklet, which has a link to the online warning, but it was accepted that the mentally ill appellant litigant in person here never received it.

Five minutes before the 4.00pm deadline, the claimant emailed the EAT with an attachment containing his notice of appeal and all necessary documents, but the communication failed as the attachment exceeded 10mb.

The claimant immediately re-sent the attachments as a number of smaller files, but they were received after the deadline and his application for an extension was, bizarrely, refused on the papers, and he appealed, but the EAT, in an astonishing decision, rejected his appeal.

The Court of Appeal held that the EAT was wrong to refuse an extension of time to appeal in these circumstances.

An ordinary layman would reasonably have expected that the EAT’s server would have been able to accept the documents which the EAT itself required on an appeal.

An extension would be granted to render the claimant’s appeal to the EAT in time.

As the Court of Appeal here pointed out, the EAT has encouraged the lodging by email of the documents necessary to institute an appeal but has, in my words and not those of the Court of Appeal, an inbox capacity that would shame a five-year-old.

To put this in context, a basic Iphone photo uses up 2.5mb.

The warning can only be seen by going to a link online, yet an appellant is specifically prohibited –

Desmond v Cheshire West and Chester Council HQ [2012] UKEAT 0007/12/2006 .

from getting around the Toytown IT system that the EAT has by having a link online to the appeal documents.

A hard copy of the warning, contained in document T440, is not sent to a proposed appellant.

As you will pick up, that specific prohibition was made by the Employment Appeal Tribunal which ruled that it was allowed to deprive people of the right to appeal by an online link, but they could not appeal by way of an online link.

The Court of Appeal said that it regarded it as surprising that the EAT server was unable to accept the documents that the EAT itself required and encouraged to be lodged by email.

“ … I should be reluctant to hold that would-be appellants are to be criticised for ignorance of information (a fortiori rather surprising information) which is only available in a guidance document which they are not advised to consult, even if many or most might in fact find it by their own efforts. (There is also a difference…between giving information in government guidance and making provision in the Rules and/or the EAT’s own Practice Direction, neither of which mention the limited capacity of the EAT server.)”

In a graphic passage the Court of Appeal, in dealing with the issue of appellants who leave matters to the last minute pointed out that this was not due to extraneous circumstances but:

 

“Rather, the problem was the limited capacity of the EAT’s own system (insufficiently notified to the Appellant). That seems to me to put the case into a rather different category. It is as if the Appellant had arrived at the EAT at 3.55 p.m. on the last day with the documents fully ready to serve but had been unable to deliver them because the doors or letterbox were jammed or everyone was on the street because of a fire alarm. It is inconceivable that in such a case an extension could fairly be refused…”.

 

The Court of Appeal observed that the best thing would obviously be for the EAT server’s capacity to be increased.

 

Comment

This is a real case and these are real facts. It is not one of my ironic Alice in Wonderland pieces.

These are real decisions by real Registrars and real judges.

This is a real server set up by a real IT department in a real government department.

There is a real Bill before Parliament to introduce video courts next year, and electronic filing is already compulsory in many courts.

Videos are really demanding in terms of the capacity they require on servers and bandwidth and so on.

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Written by kerryunderwood

July 30, 2019 at 9:00 am

Posted in Uncategorized

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