Tribunal retains broad discretion to extend time limit
Pendragon plc (trading as CD Bramall Bradford) v Copus, Employment Appeal Tribunal, 11 July 2005
Pendragon failed to file its ET3 notice of response form within the 28-day time limit prescribed under the 2004 Tribunal Rules of Procedure. A default judgment was entered against it, as provided for under the rules. Pendragon filed its notice of response shortly afterwards, together with an application for the judgment to be set aside. The delay was caused by the tribunal papers being passed from person to person within Pendragon before they were dealt with.
The tribunal ruled that this was not a good explanation for the delay and that it had no discretion to set aside the default judgment. It did find that had it had the discretion to do so, it would have set the default judgment aside as it found Pendragon’s defence to have merit.
Pendragon appealed to the Employment Appeal Tribunal (EAT) which ruled that when considering whether to set aside a default judgment or reviewing a decision to debar a response filed out of time, the test remains that laid down in the 1997 case of Kwik Save v Swain, which said the tribunal should exercise discretion on a broad, just and equitable basis. This would include considering the reasons for any delay and whether there was any merit in the defence. The EAT said that it could not have been intended for the new rules to have such a narrow interpretation, allowing for no discretion when late responses had been presented.