The Court of Appeal has granted leniency to a litigant whose first attempt at submitting a document failed because the electronic file was too big.
In J v K & Anor, Lord Justice Underhill said the appellant, then unrepresented, could not have been expected to know the limits on email submission and his appeal was wrongly dismissed.
The appellant had emailed the Employment Appeal Tribunal attaching the notice of appeal and specified documents – but unbeknown to him the maximum capacity of the EAT’s server was 10 megabytes. As the attachment broke this limit, the email was not received by the EAT. Having sent the email five minutes before the 42-day limit for submitting an appeal was due to expire, he missed this deadline – despite splitting the attachments and re-sending it an hour later.
At the tribunal Judge Hand dismissed the application for an extension on the basis the appellant left it too late to file his documents and he had access to guidance warning him about the 10MB limit.
But following a hearing at the Court of Appeal, judges agreed to grant sufficient extension to render his appeal to the EAT in time. This effectively reactivated his overall appeal, which will be considered by the EAT in the usual way.
Underhill LJ said it was ‘inconceivable’ that the appellant’s application for extension could fairly be refused, even if the problem could have been fixed by earlier submission of the documents.
‘The obstacle here was not, as it generally is, something extraneous to the EAT – such as documents going astray in the post, or a traffic accident delaying the appellant’s arrival at the EAT, or a computer failure at his or her end,’ said the judge. ‘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.’
He said the email failure was akin to the appellant being unable to deliver documents in person because the EAT doors or letterbox were jammed.
The court heard there is guidance to litigants about the email server limitations, but the appellant never received a letter which outlined this, and so was not referred to the guidance.
The judge said the covering letter routinely sent to employment tribunal users should refer directly to guidance for making an appeal, and make it clear this ought to be read. The guidance itself should also state that the 10MB limit is easily exceeded if scanned documents are included.