EMPLOYMENT APPEAL TRIBUNAL
Audit House, 58 Victoria Embankment, London, EC4Y 0DS
(EMPLOYMENT APPEAL TRIBUNAL - PROCEDURE) 2004
- Introduction and Objective
- Institution of Appeal
- Time for Instituting Appeals
- Interim Applications
- The Right to Inspect the Register and Certain Documents and to Take Copies
- Papers for Use at the Hearing
- Evidence Before the Employment Tribunal
- Fresh Evidence and New Points of Law
- Case Tracks and Directions
- Respondent's Answer and Directions
- Complaints about the Conduct of The Employment Tribunal Hearing
- Listing of Appeals
- Skeleton Arguments
- Citation of Authorities
- Disposal of Appeals by Consent
- Appellant's Failure to Present a Response
- Handing Down of Judgments
- Appeals from the EAT
1. INTRODUCTION AND OBJECTIVE
1.1 This Practice Direction (“PD”) supersedes all previous Practice Directions. It comes into force on 9 December 2004.
1.2 The Employment Appeal Tribunal Rules 1993 (SI 1993/2854) as amended by the Employment Appeal Tribunal (Amendment) Rules 2001 (SI 2001/1128 and 2001/1476) and the Employment Appeal Tribunal (Amendment) Rules 2004 (SI 2004/2526) (“the Rules”) apply to all proceedings irrespective of when those proceedings were commenced.
1.3 By s30(3) of the Employment Tribunals Act 1996 (“ETA 1996”) the Employment Appeal Tribunal (“the EAT”) has power, subject to the Rules, to regulate its own procedure. In so doing, the EAT regards itself as subject in all its actions to the duties imposed by Rule 2A. It will seek to apply the overriding objective when it exercises any power given to it by the Rules or interprets any Rule.
1.4 The overriding objective of this PD is to enable the EAT to deal with cases justly. Dealing with a case justly includes, so far as is practicable:
1.4.1 ensuring that the parties are on an equal footing;
1.4.2 dealing with the case in ways which are proportionate to the importance and complexity of the issues;
1.4.3 ensuring that it is dealt with expeditiously and fairly;
1.4.4 saving expense.
1.5 The parties are required to help the EAT to further the overriding objective.
1.6 Where the Rules do not otherwise provide, the following procedure will apply to all appeals to the EAT.
1.7 The provisions of this PD are subject to any specific directions which the EAT may make in any particular case. Otherwise, the directions set out below must be complied with in all appeals from Employment Tribunals. In national security appeals, and appeals from the Certification Officer and the Central Arbitration Committee, the Rules set out the separate procedures to be followed and the EAT will normally give specific directions.
1.8 Where it is appropriate to the EAT´s jurisdiction, procedure, unrestricted rights of representation and restricted costs regime, the EAT is guided by the Civil Procedure Rules. So, for example:
1.8.1 For the purpose of serving a valid Notice of Appeal under Rule 3 and para 3 below, when an Employment Tribunal decision is sent to parties on a Wednesday, that day does not count and the Notice of Appeal must arrive at the EAT on or before the Wednesday 6 weeks (ie 42 days) later.
1.8.2 When a date is given for serving of a document or for doing some other act, the complete document must be received by the EAT or the relevant party by 4.00pm on that date. Any document received after 4.00 pm will be deemed to be lodged on the next working day.
1.8.3 Except as provided in 1.8.4 below, all days count, but if a time limit expires on a day when the central office of the EAT, or the EAT office in Edinburgh (as appropriate), is closed, it is extended to the next working day.
1.8.4 Where the time limit is 5 days (e.g. an appeal against a Registrar´s order or direction), Saturdays, Sundays, Christmas Day, Good Friday and Bank Holidays do not count.
1.9 In this PD any reference to the date of an order shall mean the date stamped upon the relevant order by the EAT (“the seal date”).
1.10 The parties can expect the EAT normally to have read the documents (or the documents indicated in any essential reading list if permission is granted under para 6.3 below for an enlarged appeal bundle) in advance of any hearing.
2. INSTITUTION OF APPEAL
2.1 The Notice of Appeal must be, or be substantially, in accordance with Form 1 (in the amended form annexed to this Practice Direction) or Forms 1A or 2 of the Schedule to the Rules and must identify the date of the judgment, decision or order being appealed. Copies of the judgment, decision or order appealed against and of the Employment Tribunal´s written reasons, together with a copy of the Claim (ET1) and the Response (ET3) must be attached, or if not, a written explanation must be given. A Notice of Appeal without such documentation will not be validly lodged.
2.2 If the appellant has made an application to the Employment Tribunal for a review of its judgment or decision, a copy of such application should accompany the Notice of Appeal together with the judgment and written reasons of the Employment Tribunal in respect of that review application, or a statement, if such be the case, that a judgment is awaited. If any of these documents cannot be included, a written explanation must be given. The appellant should also attach (where they are relevant to the appeal) copies of any orders including case management orders made by the Employment Tribunal.
2.3 Where written reasons of the Employment Tribunal are not attached to the Notice of Appeal, either (as set out in the written explanation) because a request for written reasons has been refused by the Employment Tribunal or for some other reason, an appellant must, when lodging the Notice of Appeal, apply in writing to the EAT to exercise its discretion to hear the appeal without written reasons or to exercise its power to request written reasons from the Employment Tribunal, setting out the full grounds of that application.
2.4 The Notice of Appeal must clearly identify the point(s) of law which form(s) the ground(s) of appeal from the judgment, decision or order of the Employment Tribunal to the EAT. It should also state the order which the appellant will ask the EAT to make at the hearing.
2.5 Rules 3(7)-(10) give a judge or the Registrar power to decide that no further action shall be taken in certain cases where it appears that the Notice of Appeal or any part of it (a) discloses no reasonable grounds for bringing the appeal, or (b) is an abuse of the Employment Appeal Tribunal´s process or is otherwise likely to obstruct the just disposal of proceedings. The Rules specify the rights of the appellant and the procedure to be followed. The appellant can request an oral hearing before a judge to challenge the decision. If it appears to the judge or Registrar that a Notice of Appeal or an application gives insufficient grounds of, or lacks clarity in identifying, a point of law, the judge or Registrar may postpone any decision under Rule 3(7) pending the appellant´s amplification or clarification of the Notice of Appeal or further information from the Employment Tribunal.
2.6 Perversity Appeals: an appellant may not state as a ground of appeal simply words to the effect that “the judgment or order was contrary to the evidence,” or that “there was no evidence to support the judgment or order”, or that “the judgment or order was one which no reasonable Tribunal could have reached and was perverse” unless the Notice of Appeal also sets out full particulars of the matters relied on in support of those general grounds.
2.7 A party cannot reserve a right to amend, alter or add, to a Notice of Appeal or a respondent´s Answer. Any application for leave to amend must be made as soon as practicable and must be accompanied by a draft of the amended Notice of Appeal or amended Answer which makes clear the precise amendments for which permission is sought.
2.8 A respondent to the appeal who wishes to resist the appeal and/or to cross-appeal, but who has not delivered a respondent's Answer as directed by the Registrar, or otherwise ordered, may be precluded from taking part in the appeal unless permission is granted to serve an Answer out of time.
2.9 Where an application is made for leave to institute or continue relevant proceedings by a person who has been made the subject of a Restriction of Proceedings Order pursuant to s33 of ETA 1996, that application will be considered on paper by a judge, who may make an order granting, refusing or otherwise dealing with such application on paper.
3. TIME FOR INSTITUTING APPEALS
3.1 The time within which an appeal must be instituted depends on whether the appeal is against a judgment or against an order or decision of the Employment Tribunal.
3.2 If the appeal is against an order or decision, the appeal must be instituted within 42 days of the date of the order or decision. The EAT will treat a Tribunal´s refusal to make an order or decision as itself constituting an order or decision. The date of an order or decision is the date when the order or decision was sent to the parties, which is normally recorded on or in the order or decision.
3.3 If the appeal is against a judgment, the appeal must be instituted within 42 days from the date on which the written record of the judgment was sent to the parties. However in three situations the time for appealing against a judgment will be 42 days from the date when written reasons were sent to the parties. This will be the case only if (1) written reasons were requested orally at the hearing before the Tribunal or (2) written reasons were requested in writing within 14 days of the date on which the written record of the judgment was sent to the parties or (3) the Tribunal itself reserved its reasons and gave them subsequently in writing: such exception will not apply if the request to the Tribunal for written reasons is made out of time (whether or not such request is granted). The date of the written record and of the written reasons is the date when they are sent to the parties, which is normally recorded on or in the written record and the written reasons.
3.4 The time limit referred to in paras 3.1 to 3.3 above apply even though the question of remedy and assessment of compensation by the Employment Tribunal has been adjourned or has not been dealt with and even though an application has been made to the Employment Tribunal for a review.
3.5 An application for an extension of time for appealing cannot be considered until a Notice of Appeal in accordance with para 2(1) above has been lodged with the EAT.
3.6 Any application for an extension of time for appealing must be made as an interim application to the Registrar, who will normally determine the application after inviting and considering written representations from each side. An interim appeal lies from the Registrar's decision to a judge. Such an appeal must be notified to the EAT within 5 days of the date when the Registrar´s decision was sent to the parties. [See para 4.3 below.]
3.7 In determining whether to extend the time for appealing, particular attention will be paid to whether any good excuse for the delay has been shown and to the guidance contained in the decisions of the EAT and the Court of Appeal, as summarised in United Arab Emirates v Abdelghafar  ICR 65 and Aziz v Bethnal Green City Challenge Co Ltd  IRLR 111.
3.8 It is not usually a good reason for late lodgment of a Notice of Appeal that an application for litigation support from public funds has been made, but not yet determined; or that support is being sought from, but has not yet been provided by, some other body, such as a trade union, employers´ association or one of the equality Commissions.
3.9 In any case of doubt or difficulty, a Notice of Appeal should be lodged in time and an application made to the Registrar for directions.
4. INTERIM APPLICATIONS
4.1 Interim applications should be made in writing (no particular form is required) and will be initially referred to the Registrar who after considering the papers may deal with the case or refer it to a judge. The judge may dispose of it himself or refer it to a full EAT hearing. Parties are encouraged to make any such applications at a Preliminary Hearing (“PH”) or an Appointment for Directions if one is ordered (see paras 9.7 - 9.18 and 11.2 below).
4.2 Unless otherwise ordered, any application for extension of time will be considered and determined as though it were an interim application to the Registrar, who will normally determine the application after inviting and considering written representations from each side.
4.3 An interim appeal lies from the Registrar's decision to a judge. Such an appeal must be notified to the EAT within 5 days of the date when the Registrar´s decision was sent to the parties.
5. THE RIGHT TO INSPECT THE REGISTER AND CERTAIN DOCUMENTS AND TO TAKE COPIES
5.1 Any document lodged in the Central Office of the EAT in London or in the EAT office in Edinburgh in any proceedings before the EAT shall be sealed with the seal of the EAT showing the date (and time, if received after 4.00 pm) on which the document was lodged.
5.2 Particulars of the date of delivery at the Central Office of the EAT or in the EAT office in Edinburgh of any document for filing or lodgment together with the time, if received after 4.00 pm, the date of the document and the title of the appeal of which the document forms part of the record shall be entered in the Register of Cases kept in the Central Office and in Edinburgh or in the file which forms part of the Register of Cases.
5.3 Any person shall be entitled during office hours by appointment to inspect and request a copy of any of the following documents filed or lodged in the Central Office or the EAT office in Edinburgh, namely:
5.3.1 any Notice of Appeal or respondent´s Answer or any copy thereof;
5.3.2 any judgment or order given or made in court or any copy of such judgment or order; and
5.3.3 with the permission of the EAT, which may be granted on an application, any other document.
5.4 A copying charge per page will be payable for those documents mentioned in para 5.3 above.
5.5 Nothing in this Direction shall be taken as preventing any party to an appeal from inspecting and requesting a copy of any document filed or lodged in the Central Office or the EAT office in Edinburgh before the commencement of the appeal, but made with a view to its commencement.
6. PAPERS FOR USE AT THE HEARING
6.1 It is the responsibility of the parties or their advisers (see paras 6.5 and 6.6 below) to prepare a core bundle of papers for use at any hearing. Ultimate responsibility lies with the appellant, following consultation with other parties. The bundle must include only those exhibits (productions in Scotland) and documents used before the Employment Tribunal which are considered to be necessary for the appeal. It is the duty of the parties or their advisers to ensure that only those documents are included which are (a) relevant to the point(s) of law raised in the appeal and (b) likely to be referred to at the hearing.
6.2 The documents in the core bundle should be numbered by item, then paginated continuously and indexed, in the following order:
6.2.1 Judgment, decision or order appealed from and written reasons
6.2.2 Sealed Notice of Appeal
6.2.3 Respondent´s Answer if a Full Hearing (“FH”), respondent´s Submissions if a PH
6.2.4 ET1 Claim (and any Additional Information or Written Answers)
6.2.5 ET3 Response (and any Additional Information or Written Answers)
6.2.6 Questionnaire and Replies (discrimination and equal pay cases)
6.2.7 Relevant orders, judgments and written reasons of the Employment Tribunal
6.2.8 Relevant orders and judgments of the EAT
6.2.9 Affidavits and Employment Tribunal comments (where ordered)
6.2.10 Any documents agreed or ordered pursuant to para 7 below.
6.3 Other documents relevant to the particular hearing (for example the relevant particulars or contract of employment and any relevant procedures) referred to at the Employment Tribunal may follow in the core bundle, if the total pages do not exceed 100. No bundle containing more than 100 pages should be agreed or lodged without the permission of the Registrar or order of a judge which will not be granted without the provision of an essential reading list as soon as practicable thereafter. If permitted or ordered, further pages should follow, with consecutive pagination, in an additional bundle or bundles if appropriate.
6.4 All documents must be legible and unmarked.
6.5 PH cases (see para 9.5.2 below), Appeals from Registrar´s Order, Rule 3(10) hearings, Appointments for Directions: the appellant must prepare and lodge 4 copies (2 copies if judge sitting alone) of the bundle as soon as possible after service of the Notice of Appeal and no later than 21 days from the seal date of the relevant order unless otherwise directed.
6.6 FH cases (see para 9.5.3 below): the parties must co-operate in agreeing a bundle of papers for the hearing. By no later than 35 days from the seal date of the relevant order, unless otherwise directed, the appellant is responsible for ensuring that 4 copies (2 copies if judge sitting alone) of a bundle agreed by the parties is lodged at the EAT. The EAT will not retain bundles from a case heard at a PH.
6.7 Warned List and Fast Track FH cases: the bundles should be lodged as soon as possible and (unless the hearing date is within 7 days) in any event within 7 days after the parties have been notified that the case is expedited or in the Warned List.
6.8 In the event of disagreement between the parties or difficulty in preparing the bundles, the Registrar may give appropriate directions, whether on application in writing (on notice) by one or more of the parties or of his/her own initiative.
7. EVIDENCE BEFORE THE EMPLOYMENT TRIBUNAL
7.1 An appellant who considers that a point of law raised in the Notice of Appeal cannot be argued without reference to evidence given (or not given) at the Employment Tribunal, the nature or substance of which does not, or does not sufficiently, appear from the written reasons, must ordinarily submit an application with the Notice of Appeal. The application is for the nature of such evidence (or lack of it) to be admitted, or if necessary for the relevant parts of the Chairman´s notes of evidence to be produced. If such application is not so made, then it should be made:
7.1.1 if a PH is ordered, in the skeleton or written submissions lodged prior to such PH; or
7.1.2 if the case is listed for FH without a PH, then within 14 days of the seal date of the order so providing.
Any such application by a respondent to an appeal, must, if not made earlier, accompany the respondent´s Answer.
7.2 The application must explain why such a matter is considered necessary in order to argue the point of law raised in the Notice of Appeal or respondent's Answer. The application must identify:
7.2.1 the issue(s) in the Notice of Appeal or respondent's Answer to which the matter is relevant;
7.2.2 the names of the witnesses whose evidence is considered relevant, alternatively the nature of the evidence the absence of which is considered relevant;
7.2.3 (if applicable) the part of the hearing when the evidence was given;
7.2.4 the gist of the evidence (or absence of evidence) alleged to be relevant; and
7.2.5 (if the party has a record), saying so and by whom and when it was made, or producing an extract from a witness statement given in writing at the hearing.
7.3 The application will be considered on the papers, or if appropriate at a PH, by the Registrar or a judge. The Registrar or a judge may give directions for written representations (if they have not already been lodged), or may determine the application, but will ordinarily make an order requiring the party who seeks to raise such a matter to give notice to the other party(ies) to the appeal/cross-appeal. The notice will require the other party(ies) to co-operate in agreeing, within 21 days (unless a shorter period is ordered), a statement or note of the relevant evidence, alternatively a statement that there was no such evidence. All parties are required to use their best endeavours to agree such a statement or note.
7.4 In the absence of such agreement within 21 days (or such shorter period as may be ordered) of the requirement, any party may make an application within 7 days thereafter to the EAT, for directions. The party must enclose all relevant correspondence and give notice to the other parties. The directions may include: the resolution of the disagreement on the papers or at a hearing; the administration by one party to the others of, or a request to the Chairman to respond to, a questionnaire; or, if the EAT is satisfied that such notes are necessary, a request that the Chairman produce his/her notes of evidence either in whole or in part.
7.5 If the EAT requests any documents from the Chairman, it will supply copies to the parties upon receipt.
7.6 In an appeal from an Employment Tribunal which ordered its proceedings to be tape recorded, the EAT will apply the principles above to any application for a transcript.
7.7 A note of evidence is not to be produced and supplied to the parties to enable the parties to embark on a “fishing expedition” to establish grounds or additional grounds of appeal or because they have not kept their own notes of the evidence. If an application for such a note is found by the EAT to have been unreasonably made or if there is unreasonable lack of co-operation in agreeing a relevant note or statement, the party behaving unreasonably is at risk of being ordered to pay costs.
8. FRESH EVIDENCE AND NEW POINTS OF LAW
8.1 Where an application is made by a party to an appeal to put in, at the hearing of the appeal, any document which was not before the Employment Tribunal, and which has not been agreed in writing by the other parties, the application and a copy of the documents sought to be admitted should be lodged at the EAT with the Notice of Appeal or the respondent's Answer, as appropriate. The application and copy should be served on the other parties. The same principle applies to any oral evidence not given at the Employment Tribunal which is sought to be adduced on the appeal. The nature and substance of such evidence together with the date when the party first became aware of its existence must be disclosed in a document, where appropriate a witness statement from the relevant witness with signed statement of truth, which must be similarly lodged and served.
8.2 In exercising its discretion to admit any fresh evidence or new document, the EAT will apply the principles set out in Ladd v Marshall  1WLR 1489, having regard to the overriding objective, ie:
8.2.1 the evidence could not have been obtained with reasonable diligence for use at the Employment Tribunal hearing;
8.2.2 it is relevant and would probably have had an important influence on the hearing;
8.2.3 it is apparently credible.Accordingly the evidence and representations in support of the application must address these principles.
8.3 A party wishing to resist the application must, within 14 days of its being sent, submit any representations in response to the EAT and other parties.
8.4 The application will be considered by the Registrar or a judge on the papers (or, if appropriate, at a PH) who may determine the issue or give directions for a hearing or may seek comments from the Chairman. A copy of any comments received from the Chairman will be sent to all parties.
8.5 If a respondent intends to contend at the FH that the appellant has raised a point which was not argued below, the respondent shall so state:
8.5.1 if a PH has been ordered, in writing to the EAT and all parties, within 14 days of receiving the Notice of Appeal;
8.5.2 if the case is listed for a FH without a PH, in a respondent´s Answer.
In the event of dispute the Chairman should be asked for his/her comments as to whether a particular legal argument was deployed.
9. CASE TRACKS AND DIRECTIONS: THE SIFT OF APPEALS
9.1 Consistent with the overriding objective, the EAT will seek to give directions for case management so that the case can be dealt with quickly, or better considered, and in the most effective and just way.
9.2 Applications and directions for case management will usually be dealt with on the papers (“the sift”) by a judge, or by the Registrar with an appeal to a judge. Any party seeking directions must serve a copy on all parties. Directions may be given at any stage, before or after the registration of a Notice of Appeal. An order made will contain a time for compliance, which must be observed or be the subject of an application by any party to vary or discharge it, or to seek an extension of time. Otherwise, failure to comply with an order in time or at all may result in the EAT exercising its power under Rule 26 to strike out the appeal, cross-appeal or respondent´s Answer or debar the party from taking any further part in the proceedings or to make any other order it thinks fit, including an award of costs.
9.3 Any application to vary or discharge an order, or to seek an extension of time, must be lodged at the EAT and served on the other parties within the time fixed for compliance. Such other parties must, if opposing the application and within 14 days (or such shorter period as may be ordered) of receiving it, submit their representations to the EAT and the other parties.
9.4 An application to amend a Notice of Appeal or respondent's Answer must include the text of the original document with any changes clearly marked and identifiable, for example with deletions struck through in red and the text of the amendment either written or underlined in red. Any subsequent amendments will have to be in a different identifiable colour.
9.5 Notices of Appeal are sifted by a judge or the Registrar so as to determine the most effective case management of the appeal. The sift will result in a decision as to which track the appeal will occupy, and directions will be given. There are 4 tracks:
9.5.1 Rule 3(7) cases [see para 9.6 below].
9.5.2 Preliminary Hearing (PH) cases [see paras 9.7 – 9.18 below].
9.5.3 Full Hearing (FH) cases [see para 9.19 below].
9.5.4 Fast Track Full Hearing (“FTFH”) cases [see paras 9.20 – 9.21 below].
The judge or Registrar may also stay (or sist in Scotland) the appeal for a period, normally 21 days pending the making or the conclusion of an application by the appellant to the Employment Tribunal (if necessary out of time) for a review or pending the response by the Employment Tribunal to an invitation from the judge or Registrar to clarify, supplement or give its written reasons.
Rule 3(7) cases (9.5.1)
9.6 The judge or Registrar, having considered the Notice of Appeal and, if appropriate, having obtained any additional information, may decide that it or any of the grounds contained in it disclose no reasonable grounds for bringing the appeal or are an abuse of the process or otherwise likely to obstruct the just disposal of the proceedings. Reasons will be sent and within 28 days the appellant may submit a fresh Notice of Appeal for further consideration or request an oral hearing before a judge. At that hearing the judge may confirm the earlier decision or order that the appeal proceeds to a Preliminary or Full Hearing. A hearing under Rule 3(10), including judgment and any directions, will normally last not more than one hour. A judge or Registrar may also follow the Rule 3(7) procedure, of his or her own initiative, or on application, at any later stage of the proceedings, if appropriate.
Preliminary Hearing cases (9.5.2)
9.7 The purpose of a PH is to determine whether:
9.7.1 the grounds in the Notice of Appeal raise a point of law which gives the appeal a reasonable prospect of success at a FH; or
9.7.2 for some other compelling reason the appeal should be heard eg that the appellant seeks a declaration of incompatibility under the Human Rights Act 1998; or to argue that a decision binding on the EAT should be considered by a higher court.
9.8 Prior to the PH there will be automatic directions. These include sending the Notice of Appeal to the respondent(s) to the appeal. The direction may order or in any event will enable the respondent(s) to lodge and serve, within 14 days of the seal date of the order (unless otherwise directed), concise written submissions in response to the Notice of Appeal, dedicated to showing that there is no reasonable prospect of success for all or any grounds of any appeal. Such submissions will be considered at the PH.
9.9 If the respondent to the appeal intends to serve a cross-appeal this must be accompanied by written submissions and must be lodged and served within 14 days of service of the Notice of Appeal. The respondent to the appeal must make clear whether it is intended to advance the cross-appeal:
9.9.1 in any event (an unconditional cross-appeal); or
9.9.2 only if the Appellant succeeds (a conditional cross-appeal).
In either case the respondent is entitled to attend the PH, which will also amount to a PH of the cross-appeal, and make submissions.
9.10 All parties will be notified of the date fixed for the PH. In the normal case, unless ordered otherwise, only the appellant and/or a representative should attend to make submissions to the EAT on the issue whether the Notice of Appeal raises a point of law with a reasonable prospect of success:
9.10.1 Except where the respondent to the appeal makes a cross-appeal, or the EAT orders a hearing with all parties present, the respondent to the appeal is not required to attend the hearing and is not usually permitted to take part in it. But any written submissions as referred to in (8) above will be considered at the PH.
9.10.2 If the appellant does not attend, the appeal may nevertheless be dealt with as above on written submissions, and be wholly or in part dismissed or allowed to proceed.
9.11 The PH, including judgment and directions, will normally last no more than one hour.
9.12 The sift procedure will be applied to cross-appeals as well as appeals. If an appeal has been assigned to the FH track, without a PH, and the respondent includes a cross-appeal in the respondent's Answer, the respondent must immediately apply to the EAT in writing on notice to the appellant for directions on the papers as to whether the EAT considers that there should be a PH of the cross-appeal.
9.13 If satisfied that the appeal (and/or the cross-appeal) should be heard at a FH on all or some of the grounds of appeal, the EAT will give directions relating to, for example, a time estimate, any application for fresh evidence, a procedure in respect of matters of evidence before the Employment Tribunal not sufficiently appearing from the written reasons, the exchange and lodging of skeleton arguments and an appellant´s Chronology, and bundles of documents and authorities.
9.14 Permission to amend a Notice of Appeal (or cross-appeal) may be granted:
9.14.1 If the proposed amendment is produced at the hearing, then, if such amendment has not previously been notified to the other parties, and the appeal (or cross-appeal) might not have been permitted to proceed but for the amendment, the opposing party(ies) will have the opportunity to apply on notice to vary or discharge the permission to proceed, and for consequential directions as to the hearing or disposal of the appeal or cross-appeal.
9.14.2 If a draft amendment is not available at the PH, an application for permission to amend, in writing on notice to the other party(ies) in accordance with para 9.4 above, will be permitted to be made within 14 days. Where, but for such proposed amendment, the appeal (or cross-appeal) may not have been permitted to proceed to a FH, provision may be made in the order on the PH for the appeal (or cross-appeal) to be dismissed if the application for permission to amend is not made. Where such an application is made and refused, provision will be made for any party to have liberty to apply, in writing on notice to the other party(ies), as to the hearing or disposal of the appeal.
9.15 If not satisfied that the appeal, or any particular ground of it, should go forward to a FH, the EAT at the PH will dismiss the appeal, wholly or in part, and give a judgment setting out the reasons for doing so.
9.16 If an appeal is permitted to go forward to an FH on all grounds, a reasoned judgment will not normally be given.
9.17 Parties who become aware that a similar point is raised in other proceedings at an Employment Tribunal or the EAT are encouraged to co-operate in bringing this to the attention of the Registrar so that consideration can be given to the most expedient way of dealing with the cases, in particular to the possibility of having two or more appeals heard together.
9.18 If an appeal is permitted to go forward to an FH, a listing category will be assigned ie:
P (recommended to be heard in the President´s list);
A (complex, and raising point(s) of law of public importance);
B (medium level);
C (involving legal principles which are well settled).
Full Hearing cases (9.5.3)
9.19 If a judge or the Registrar decides to list the case for an FH without a PH s/he will consider appropriate directions, relating for example to amendment, further information, any application for fresh evidence, a procedure in respect of matters of evidence at the Employment Tribunal not sufficiently appearing from the written reasons, allegations of bias, apparent bias or improper conduct, provisions for skeleton arguments, appellant´s Chronology and bundles of documents and of authorities, time estimates and listing category (as set out in para 9.18 above).
Fast Track Full Hearing cases (9.5.4)
9.20 FH cases are normally heard in the order in which they are received. However, there are times when it is expedient to hear an appeal as soon as it can be fitted into the list. Appeals placed in this Fast Track, at the discretion of a judge or the Registrar, will normally fall into the following cases:
9.20.1 appeals where the parties have made a reasoned case on the merits for an expedited hearing;
9.20.2 appeals against interim orders or decisions of an Employment Tribunal, particularly those which involve the taking of a step in the proceedings within a specified period, for example adjournments, further information, amendments, disclosure, witness orders;
9.20.3 appeals on the outcome of which other applications to the Employment Tribunal or the EAT or the civil courts depend;
9.20.4 appeals in which a reference to the European Court of Justice (ECJ), or a declaration of incompatibility under the Human Rights Act 1998, is sought;
9.20.5 appeals involving reinstatement, re-engagement, interim relief or a recommendation for action (discrimination cases).
9.21 Category C cases estimated to take two hours or less may also be allocated to the Fast Track.
10. RESPONDENT´S ANSWER AND DIRECTIONS
10.1 After the sift stage or a PH, at which a decision is made to permit the appeal to go forward to an FH, the EAT will send the Notice of Appeal, with any amendments which have been permitted, and any submissions or skeleton argument lodged by the appellant, to all parties who are respondents to the appeal. Within 14 days of the seal date of the order (unless otherwise directed), respondents must lodge at the EAT and serve on the other parties a respondent's Answer. If it contains a cross-appeal, the appellant must within 14 days of service (unless otherwise directed), lodge and serve a Reply.
10.2 After lodgment and service of the respondent's Answer and of any Reply to a cross-appeal, the Registrar may, where necessary, invite applications from the parties in writing, on notice to all other parties, for directions, and may give any appropriate directions on the papers or may fix a day when the parties should attend on an Appointment for Directions.
10.3 A judge may at any time, upon consideration of the papers or at a hearing, make an order requiring or recommending consideration by the parties or any of them of compromise, conciliation, mediation or, in particular, reference to ACAS.
11. COMPLAINTS ABOUT THE CONDUCT OF THE EMPLOYMENT TRIBUNAL HEARING
11.1 An appellant who intends to complain about the conduct of the Employment Tribunal (for example bias, apparent bias or improper conduct by the Chairman or lay members or any procedural irregularity at the hearing) must include in the Notice of Appeal full particulars of each complaint made.
11.2 An appeal which is wholly or in part based on such a complaint will be sifted by a judge or the Registrar as set out in para 9.5 above and this may result in a decision as to the appropriate track which the appeal will occupy. At the sift stage or before, the judge or Registrar may postpone a decision as to track, and direct that the appellant or a representative provide an affidavit setting out full particulars of all allegations of bias or misconduct relied upon. At the sift stage the Registrar may enquire of the party making the complaint whether it is intended to proceed with it.
11.3 If the appeal is allocated to the PH or FH track, the EAT may take the following steps prior to such hearing within a time-limit set out in the relevant order:
11.3.1 require the appellant or a representative to provide, if not already provided, an affidavit as set out in para 11.2 above;
11.3.2 require any party to give an affidavit or to obtain a witness statement from any person who has represented any of the parties at the Tribunal hearing, and any other person present at the Tribunal hearing or a relevant part of it, giving their account of the events set out in the affidavit of the appellant or the appellant´s representative. For the above purpose, the EAT will provide copies of any affidavits received from or on behalf of the appellant to any other person from whom an account is sought;
11.3.3 seek comments, upon all affidavits or witness statements received, from the Chairman of the Employment Tribunal from which the appeal is brought and may seek such comments from the lay members of the Tribunal. For the above purpose, copies of all relevant documents will be provided by the EAT to the Chairman and, if appropriate, the lay members; such documents will include any affidavits and witness statements received, the Notice of Appeal and other relevant documents.
11.3.4 the EAT will on receipt supply to the parties copies of all affidavits, statements and comments received.
11.4 A respondent who intends to make such a complaint must include such particulars as set out in paras 11.1 and 11.2 above:
11.4.1 (in the event of a PH being ordered in respect of the appellant´s appeal, in accordance with para 9.5.2 above) in the cross-appeal referred to in para 9.9 above, or, in the absence of a cross-appeal, in written submissions, as referred to in para 9.8 above;
11.4.2 (in the event of no PH being ordered, in accordance with para 9.5.3 above) in his respondent´s Answer.
A similar procedure will then be followed as in para 11.3 above.
11.5 In every case which is permitted to go forward to an FH the EAT will give appropriate directions, ordinarily on the papers after notice to the appellant and respondent, as to the procedure to be adopted at, and material to be provided to, the FH; but such directions may be given at the sift stage or at a PH.
11.6 Parties should note the following:
11.6.1 The EAT will not permit complaints of the kind mentioned above to be raised or developed at the hearing of the appeal unless this procedure has been followed.
11.6.2 The EAT recognises that Chairmen and Employment Tribunals are themselves obliged to observe the overriding objective and are given wide powers and duties of case management (see Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 (SI No 1861), so appeals in respect of their conduct of Employment Tribunals, which is in exercise of those powers and duties, are the less likely to succeed.
11.6.3 Unsuccessful pursuit of an allegation of bias or improper conduct, particularly in respect of case management decisions, may put the party raising it at risk of an order for costs.
12. LISTING OF APPEALS
12.1 Estimate of Length of Hearing: the lay members of the EAT are part-time members. They attend when available on pre-arranged dates. They do not sit for continuous periods. Consequently appeals which run beyond their estimated length have to be adjourned part-heard (often with substantial delay) until a day on which the judge and members are all available. To avoid inconvenience to the parties and to the EAT, and to avoid additional delay and costs suffered as a result of adjournment of part-heard appeals, all parties are required to ensure that the estimates of length of hearing (allowing for the fact that the parties can expect the EAT to have pre-read the papers and for the giving of a judgment) are accurate when first given. Any change in such estimate, or disagreement with an estimate made by the EAT on a sift or at a PH, is to be notified immediately to the Listing Officer,
12.2 If the EAT concludes that the hearing is likely to exceed the estimate, or if for other reasons the hearing may not be concluded within the time available, it may seek to avoid such adjournment by placing the parties under appropriate time limits in order to complete the presentation of the submissions within the estimated or available time.
12.3 Subject to para 12.6 below a date will be fixed for a PH as soon as practicable after the sift (referred to in para 9.5 above) and for an FH as soon as practicable after the sift if no PH is ordered, or otherwise after the PH.
12.4 The Listing Officer will normally consult the parties on dates, and will accommodate reasonable requests if practicable, but is not bound to do so. Once the date is fixed, the appeal will be set down in the list. A party finding that the date which has been fixed causes serious difficulties may apply to the Listing Officer for it to be changed, having first notified all other parties entitled to appear on the date of their application and the reasons for it.
12.5 Parties receiving such an application must, as soon as possible and within 7 days, notify the Listing Officer of their views.
12.6 In addition to this fixed date procedure, a list (“the warned list”) may be drawn up. Cases will be placed in such warned list at the discretion of the Listing Officer or may be so placed by the direction of a judge or the Registrar. These will ordinarily be short cases, or cases where expedition has been ordered. Parties or their representatives will be notified that their case has been included in this list, and as much notice as possible will be given of the intention to list a case for hearing, when representations by way of objection from the parties will be considered by the Listing Officer and if necessary on appeal to the Registrar or a judge. The parties may apply on notice to all other parties for a fixed date for hearing.
12.7 Other cases may be put in the list by the Listing Officer with the consent of the parties at shorter notice: for example, where other cases have been settled or withdrawn or where it appears that they will take less time than originally estimated. Parties who wish their cases to be taken as soon as possible and at short notice should notify the Listing Officer. Representations by way of objection may be made by the parties to the Listing Officer and if necessary by appeal to a judge or the Registrar.
12.8 Each week an up-to-date list for the following week will be prepared, including any changes which have been made, in particular specifying cases which by then have been given fixed dates. The list appears on the EAT website.
13. SKELETON ARGUMENTS
(This part of the Practice Direction does not apply to an appeal heard in Scotland, unless otherwise directed in relation to that appeal by the EAT in Edinburgh)
13.1 Skeleton arguments must be provided by all parties in all hearings, unless the EAT is notified by a party or representative in writing that the Notice of Appeal or respondent´s Answer or relevant application contains the full argument, or the EAT otherwise directs in a particular case. It is the practice of the EAT for all the members to read the papers in advance. A well-structured skeleton argument helps the members and the parties to focus on the point(s) of law required to be decided and so make the oral hearing more effective.
13.2 The skeleton argument should be concise and should identify and summarise the point(s) of law, the steps in the legal argument and the statutory provisions and authorities to be relied upon, identifying them by name, page and paragraph and stating the legal proposition sought to be derived from them. It is not, however, the purpose of the skeleton argument to argue the case on paper in detail. The parties can be referred to by name or as they appeared at the Employment Tribunal ie claimant (C) and respondent (R).
13.3 The skeleton argument should state the form of order which the party will ask the EAT to make at the hearing: for example, in the case of an appellant, whether the EAT will be asked to remit the whole or part of the case to the same or to a different Employment Tribunal, or whether the EAT will be asked to substitute a different decision for that of the Employment Tribunal.
13.4 The appellant's skeleton argument must be accompanied by a Chronology of events relevant to the appeal which, if possible, should be agreed by the parties. That will normally be taken as an uncontroversial document, unless corrected by another party or the EAT.
13.5 Unless impracticable, the skeleton argument should be prepared using the pagination in the index to the appeal bundle. In a case where a note of the evidence at the Employment Tribunal has been produced, the skeleton argument should identify the parts of the record to which that party wishes to refer.
13.6 Represented parties should give the instructions necessary for their representative to comply with this procedure within the time limits.
13.7 The fact that settlement negotiations are in progress in relation to the appeal does not excuse delay in lodging and exchanging skeleton arguments.
13.8 A skeleton argument may be lodged by the appellant with the Notice of Appeal or by the respondent with the respondent's Answer.
13.9 Skeleton arguments must (if not already so lodged):
13.9.1 be lodged at the EAT not less than 10 days (unless otherwise ordered) before the date fixed for the PH, appeal against Registrar´s Order, Rule 3 (10) hearing or Appointment for Directions; or, if the hearing is fixed at less than 7 days' notice, as soon as possible after the hearing date has been notified. In the event that the hearing has been ordered to be heard with all parties present, the skeleton arguments must also then be exchanged between the parties;
13.9.2 be lodged at the EAT, and exchanged between the parties, not less than 21 days before the FH;
13.9.3 in the case of warned list and fast track FH cases be lodged at the EAT and exchanged between the parties as soon as possible and (unless the hearing date is less than 7 days later) in any event within 7 days after the parties have been notified that the case is expedited or in the warned list.
13.10 Failure to follow this procedure may lead to an adjournment of an appeal or to dismissal for non-compliance with the PD, and to an award of costs. The party in default may also be required to attend before the EAT to explain their failure. It will always mean that the defaulting party must immediately despatch any delayed skeleton argument to the EAT by hand or by fax or by email to email@example.com or, as appropriate, firstname.lastname@example.org and (unless notified by the EAT to the contrary) bring to the hearing sufficient copies (a minimum of 6) of the skeleton argument and any authorities referred to. The EAT staff will not be responsible for supplying or copying these on the morning of the hearing.
14. CITATION OF AUTHORITIES
14.1 It is undesirable for parties to cite the same case from different sets of reports. The parties should, if practicable, agree which report will be used at the hearing. Where the Employment Tribunal has cited from a report it may be convenient to cite from the same report.
14.2 It is the responsibility of a party wishing to cite any authority to provide photocopies for the use of each member of the Tribunal and photocopies or at least a list for the other parties. All authorities should be bundled, indexed and incorporated in an agreed bundle.
14.3 Parties are advised not to cite an unnecessary number of authorities either in skeleton arguments or in oral argument at the hearing. It is of assistance to the EAT if parties could highlight or sideline passages relied on within the bundle of authorities.
14.4 It is unnecessary for a party citing a case in oral argument to read it in full to the EAT. Whenever a case is cited in a skeleton argument or in an oral argument it is helpful if the legal proposition for which it is cited is stated. References need only be made to the relevant passages in the report. If the formulation of the legal proposition based on the authority cited is not in dispute, further examination of the authority will often be unnecessary.
14.5 For decisions of the ECJ, the official report should be used where possible.
14.6 If it is thought necessary to cite any authority at a PH, appeal against Registrar´s Order, Rule 3 (10) hearing or Appointment for Directions, 3 copies should be provided for the EAT (one copy if a judge is sitting alone): and additional copies for any other parties notified. All authorities should be bundled, indexed and incorporated in one agreed bundle.
14.7 The parties must co-operate in agreeing a list of authorities and must jointly or severally lodge a list and 3 bundles of copies (one copy if judge sitting alone) of such authorities at the EAT not less than 7 days before the FH, unless otherwise ordered.
15. DISPOSAL OF APPEALS BY CONSENT
15.1 An appellant who wishes to abandon or withdraw an appeal should notify the other parties and the EAT immediately. If a settlement is reached, the parties should inform the EAT as soon as possible. The appellant should submit to the EAT a letter signed by or on behalf of the appellant and signed also by or on behalf of the respondent, asking the EAT for permission to withdraw the appeal and to make a consent order in the form of an attached draft signed by or for both parties dismissing the appeal, together with any other agreed order.
15.2 If the other parties do not agree to the proposed order the EAT should be informed. Written submissions should be lodged at the EAT and served on the parties. Any outstanding issue may be determined on the papers by the EAT, particularly if it relates to costs, but the EAT may fix an oral hearing to determine the outstanding matters in dispute between the parties.
15.3 If the parties reach an agreement that the appeal should be allowed by consent, and that an order made by the Employment Tribunal should be reversed or varied or the matter remitted to the Employment Tribunal on the ground that the decision contains an error of law, it is usually necessary for the matter to be heard by the EAT to determine whether there is a good reason for making the proposed order. On notification by the parties, the EAT will decide whether the appeal can be dealt with on the papers or by a hearing at which one or more parties or their representatives should attend to argue the case for allowing the appeal and making the order that the parties wish the EAT to make.
15.4 If the application for permission to withdraw an appeal is made close to the hearing date the EAT may require the attendance of the Appellant and/or a representative to explain the reasons for delay in making a decision not to pursue the appeal.
16. APPELLANT´S FAILURE TO PRESENT A RESPONSE
16.1 If the appellant in a case did not present a Response (ET3) to the Employment Tribunal and did not apply to the Employment Tribunal for an extension of time for doing so, or applied for such an extension and was refused, the Notice of Appeal must include particulars directed to the following issues, namely whether:
16.1.1 there is a good excuse for failing to present a Response (ET3) and (if that be the case) for failing to apply for such an extension of time; and
16.1.2 there is a reasonably arguable defence to the Claim (ET1).
16.2 In order to satisfy the EAT on these issues, the appellant must lodge at the EAT, together with the Notice of Appeal, a witness statement explaining in detail the circumstances in which there has been a failure to serve a Response (ET3) in time or apply for such an extension of time, the reason for that failure and the facts and matters relied upon for contesting the Claim (ET1) on the merits. There should be exhibited to the witness statement all relevant documents and a completed draft Response (ET3).
17.1 Where consent is to be obtained from the parties pursuant to s28(3) of the ETA 1996 to an appeal commencing or continuing to be heard by a judge together with only one lay member, the parties must, prior to the commencement or continuation of such hearing in front of a two-member court, themselves or by their representatives each sign a form containing the name of the one member remaining, and stating whether the member is a person falling within s28(1)(a) or (b) of the ETA 1996.
17.2 Video and Telephone Hearings. Facilities can be arranged for the purpose of holding short PHs or short Appointments for Directions by video or telephone link, upon the application (in writing) of an appellant or respondent who, or whose representative, has a relevant disability (supported by appropriate medical evidence). Such facilities will only be made available for a hearing at which the party or, if more than one party will take part, both or all parties is or are legally represented. An application that a hearing should be so held will be determined by a judge or the Registrar, and must be made well in advance of the date intended for the hearing, so that arrangements may be made. So far as concerns video conferencing facilities, they may not always be available, dependent on the location of the parties: as for telephone hearings or, especially, telephone conferencing facilities, consideration may need to be given as to payment by a party or parties of any additional expenditure resulting.
18. HANDING DOWN OF JUDGMENTS
(England and Wales)
18.1 When the EAT reserves judgment to a later date, the parties will be notified of the date when it is ready to be handed down. It is not necessary for a party or representative to attend unless it is intended to make an application, either for costs or for permission to appeal to the Court of Appeal (see paras 19 and 21 below), in which case notice of that fact, and, in the case of an intended application for costs, notice of the matters set out in para 19.3 below, should be given to the other party(ies) and to the EAT 48 hours before the date.
18.2 Copies of the judgment will be available to the parties or their representatives on the morning on which it is handed down or, if so directed by a judge, earlier to the parties´ representatives in draft subject to terms as to confidentiality. Where a draft judgment has been provided in advance, any intended application for permission to appeal referred to in para 18.1 above must be accompanied by a draft Notice of Appeal.
18.3 The judgment will be pronounced without being read aloud, by the judge who presided or by another judge, on behalf of the EAT. The judge may deal with any application or may refer it to the judge and/or the Tribunal who heard the appeal, whether to deal with on the papers or at a further oral hearing on notice.
18.4 Transcripts of unreserved judgments at a PH, appeal against Registrar´s Order, Appointment for Directions and Rule 3(10) hearing will not (save as below) be produced and provided to the parties:
18.4.1 Where an appeal, or any ground of appeal, is dismissed in the presence of the appellant, no transcript of the judgment is produced unless, within 14 days of the seal date of the order, either party applies to the EAT for a transcript, or the EAT of its own initiative directs that a judgment be transcribed (in circumstances such as those set out in para 18.5.2 below).
18.4.2 Where an appeal or any ground of appeal is dismissed in the absence of the appellant, a transcript will be supplied to the appellant.
18.4.3 Where an appeal is allowed to go forward to a PH or an FH, a judgment will not normally be delivered, but, if it is, the judge may order it to be transcribed, in which case a transcript is provided to the parties.
18.5 Transcripts of unreserved judgments at an FH. Where judgment is delivered at the hearing, no transcript will be produced and provided to the parties unless:
18.5.1 either party applies for it to the EAT within 14 days of that hearing; or
18.5.2 the EAT of its own initiative directs that the judgment be transcribed, eg where it is considered that a point of general importance arises or that the matter is to be remitted to, or otherwise continued before, the Employment Tribunal.
18.6 Where judgment at either a PH or an FH is reserved, and later handed down in writing, a copy is provided to all parties, and to recognised law reporters.
18.7 Judgments are normally reserved in Scotland and will be handed down as soon as practicable thereafter on a provisional basis to both parties who will thereafter have a period of 14 days to make any representations with regard to expenses, leave to appeal or any other relevant matter. At the expiry of that period or after such representations have been dealt with, whichever shall be the later, an order will be issued to conform to the original judgment.
18.8 All FH judgments which are transcribed or handed down will be posted on the EAT website.
19. Costs (Expenses in Scotland)
19.1 In this PD “costs” includes legal costs, expenses, allowances paid by the Secretary of State and payment in respect of time spent in preparing a case. Such costs may relate to interim applications or hearings or to a PH or FH.
19.2 An application for costs must be made either during or at the end of a relevant hearing, or in writing to the Registrar within 14 days of the seal date of the relevant order of the EAT or, in the case of a reserved judgment, as provided for in paragraph 18.1 above.
19.3 The party seeking the order must state the legal ground on which the application is based and the facts on which it is based and, by a schedule or otherwise, show how the costs have been incurred. If the application is made in respect of only part of the proceedings, particulars must be given showing how the costs have been incurred on that specific part. If the party against whom the order is sought wishes the EAT to have regard to means and/or an alleged inability to pay, a witness statement giving particulars and exhibiting any documents must be served on the other party(ies) and lodged with the EAT: further directions may be required to be given by the EAT in such case.
19.4 Such application may be resolved by the EAT on the papers, provided that the opportunity has been given for representations in writing by all relevant parties, or the EAT may refer the matter for an oral hearing, and may assess the costs either on the papers or at an oral hearing, or refer the matter for detailed assessment.
19.5 Wasted Costs. An application for a wasted costs order must be made in writing, setting out the nature of the case upon which the application is based and the best particulars of the costs sought to be recovered. Such application must be lodged with the EAT and served upon the party(ies) sought to be charged: further directions may be required to be given by the EAT in such case.
19.6 Where the EAT makes any costs order it shall provide written reasons for so doing so if such order is made by decision on the papers. If such order is made at a hearing, then written reasons will be provided if a request is made at the hearing or within 21 days of the seal date of the costs order. The Registrar shall send a copy of the written reasons to all the parties to the proceedings.
Where an application is made for a review of a judgment or order of the EAT, it can be considered on paper by a judge who may, if he or she heard the original appeal or made the original order alone, without lay members, make such order, granting, refusing, adjourning or otherwise dealing with such application, as he or she may think fit. If the original judgment or order was made by the judge together with lay members, then the judge may, pursuant to Rule 33, consider and refuse such application for review on the papers. If the judge does not refuse such application, he or she may make any relevant further order, but would not grant such application without notice to the opposing party and reference to the lay members, for consideration with them, either on paper or in open court.
21. APPEALS FROM THE EAT
Appeals heard in England and Wales
21.1 An application to the EAT for permission to appeal to the Court of Appeal must be made (unless the EAT otherwise orders) at the hearing or when a reserved judgment is handed down as provided in paras 18.1 and 18.2 above. If not made then, or if refused, or unless the EAT otherwise orders, any such applications must be made to the Court of Appeal within 14 days of the sealed order. An application for an extension of time for permission to appeal may be entertained by the EAT where a case is made out to the satisfaction of a judge or Registrar that there is a need to delay until after a transcript is received (expedited if appropriate). Applications for an extension of time for permission to appeal should however normally be made to the Court of Appeal.
21.2 The party seeking permission must state the point of law to be advanced and the grounds.
Appeals heard in Scotland
21.3 An application to the EAT for permission to appeal to the Court of Session must be made within 42 days of the date of the hearing where judgment is delivered at that hearing: if judgment is reserved, within 42 days of the date the transcript was sent to parties.
21.4 The party seeking permission must state the point of law to be advanced and the grounds.
THE HONOURABLE MR JUSTICE BURTON
Dated: 9 December 2004