Seychelles Medical Services vs Khan (MC 25 of 2023) [2024] SCSC 212 (1 July 2024)

Adeline J,

1. This is a ruling on motion on notice, brought by the Seychelles Medical Services (“the Appellant”) (the Respondent in the application before the Employment Tribunal in ET 123 of 2022). By way of such motion, the Appellant applies to this court pursuant to Rule 1 of the Appeal Rules (SI 11 of 1961) (“the Rules”) made under the Courts Act, Cap 52 of the Laws of Seychelles (“the Act”) for an extension of time to file its appeal to the Supreme Court against the judgment of the Employment Tribunal pursuant to Rule 5 of the Rules.
2. In support of its application, the Appellant has appended to its motion an affidavit to which are exhibited the necessary supporting documents, which affidavit is sworn by one Marcus Simeon, who inter alia, makes the following averments there in;

“4. On the 21 April 2023 the Employment Tribunal delivered judgment in respect of the claim, instituted before the Employment Tribunal by one Jacqueline Khan (hereinafter the Respondent) against the prospective Appellant. It is now shown to me, produced and exhibited herewith as MS1 a copy of the judgment.

5. Despite the fact that the judgment was read openly before the Employment Tribunal, it was only on Friday 5 May 2023 that a copy of the judgment was provided to the prospective Appellant by a clerk of the Employment Tribunal. As a matter of fact, the judgment was personally handed over to me on Friday 5^th May 2023.

6. The prospective Appellant was not represented by any attorney-at-law before the Employment Tribunal.

7. When the judgment had been read out in open court, I was present before the Employment Tribunal. After the delivery of the judgment, the Vice-Chairperson of the Employment tribunal, Miss Kelly Louise, stated, that the written judgment was to be ready for collection the following week.

8. On 27 April 2023, I went to the secretariat of the Employment tribunal to request for a copy of the judgment, and I was informed by a clerk of the secretariat of the Employment Tribunal, that the judgment was not ready.

9. I informed the said clerk of my concern that the time to appeal against the judgment was running out. However, the clerk informed me that the time within which to lodge an appeal against the judgment, was to start running only upon a copy of the written judgment being delivered to a party.

10. Moreover, on the official website of the Employment Tribunal it is also stated, inter alia, the following –

“[U]pon receiving a copy of the judgment or ruling, the party or parties dissatisfied with the decision may, within 14 days, file a notice of appeal at the Supreme Court.”

11. It is now shown to me, produced and exhibited hereto as MS2 a copy of the document which has been printed from the official website of the Employment tribunal.

12. On the basis of the averments mentioned in paragraphs 9 and 10, it was reasonably believed that the time, within which to lodge and appeal against the judgment, was to start to run as from the date of receiving a copy of the judgment.

13. A copy of the judgment was delivered to me only on 5 May 2023 by the clerk of the Employment Tribunal. As can be observed from MS1 the judgment contains the stamp of the Employment Tribunal and the date on the stamp is the 05 May 2023, being the date that I received the judgment.

14. It was only after obtaining a copy of the judgment that the prospective Appellant provided a copy of the judgment to the Attorney-at-law, Basil Hoareau on 5 May 2023 and sought his service as to whether it was possible to appeal against the judgment of the Employment Tribunal.

15. Attorney-at-Law Basil Hoareau had sight of the judgment late on 5^th May 2023 at around 3:45 p.m and responded by email that the last day to lodge against the judgment was 5^th May 2023 and as it was not possible to lodge the appeal on the same day. It is now shown to me, produce and exhibited hereto as MS3 a copy of the email from Attorney-at-Law Basil Hoareau.”

3. In opposition to the application, the Respondent who objects to the granting of an extension of time to file Notice of Appeal, filed an affidavit in reply which affidavit contains, inter alia, the following averments;

“3. That the Notice of Motion of the Prospective Appellant dated 8^th May 2023 precisely is for condoning the delay in filing the Appeal against the decision and award in my favour. I verily believe, and I am advised, that the reasons set out in the affidavit dated 9^th May 2023 do not have any merits and the Affidavit as a whole does not have any valid reason for this Hon’ble Court to condone the delay and to allow the Intended Appellant to file the Appeal out of time.

4. That the Intended Appellant represented by its Finance Manager or Accountant Marcus Simeon who is also the deponent in the Affidavit dated 9^th May 2023 was physically present on 21^st April 2023 when the Employment Tribunal delivered the judgment, thus he and the Intended Appellant are fully aware of the decision and the nature of judgment delivered against them. The party who was present and heard the nature of judgment ought to have filed the notice of appeal without any delay.

5. That I verily believe and I am advised that any person aggrieved over any decision and or judgment would not need to wait until the delivery of the physical copy of such decision/judgment while the law allows to file the Notice of Appeal at the first instance within the time prescribed and to file Memorandum of Appeal at a later stage within the time stipulated in Courts Act.

6. That I verily believe and I am legally advised that the intended Appellant purposely ignored to file such Notice of Appeal in order to drag the matter and protract the proceedings in order to penalise me from receiving the award of SR 149,293.34 so as to claim some justification on lack of delivery of physical copy of the judgment.

7. That I verily believe and I am legally advised that the law does not make it compulsory to file the Appeal only after the delivery of the physical copy of the Judgment and or decision while a simple Notice of Appeal as contemplated in Courts Act would have sufficed the intended Appellant to be well within the time. The judgment copy is necessary only to formulae the grounds of appeal which could have been filed at a later stage but the intended appellant wantonly omitted.

8. That I verily believe and I am legally advised that the averments of paragraph 9 of the Affidavit dated 9^th May 2023 is not genuine and valid until it is established by a sworn affidavit from the clerk of the Employment Tribunal of what is alleged in paragraph 9 of the said Affidavit.

9. That I verily believe and I am advised that the averments of paragraph of the Affidavit dated 9^th May 2023 that the Intended Appellant relied on the website of the Employment Tribunal while it is only a lame excuse and attempts to justify the delay without proper reasoning.

10. That I verily believe and I am advised that for the limited purposes of knowledge of the proceedings taken place in the Tribunal below, I wish to point out the Intended Appellant brought two witnesses (vide para 2 – page of the judgment dated 21^st April 2023) and testified against this Respondent. Thus, the Intended Appellant is fully aware of the proceedings in terms of its active participation so that it could have prepared well for itself to file the appeal on time which it purposely failed and wantonly omitted to file a Notice of Appeal, at least.

11. That I verily believe and I am advised that the intended Appellant does not aver that it has got fair chances of appeal while it is fully conscious that it does not have any merit in the appeal and does not have any prospects of success in its indented Appeal.

12. That I verily believe and I am advised that the essential part of the Affidavit to aver that the information averred in the affidavit are true and correct to its knowledge, information and belief is omitted and the jurat form of the Affidavit dated 9^th May 2023 is also not correct, hence the Affidavit is defective.

13. That even after receiving the physical copy of the said judgment dated 5^th May 2023, the intended appellant could have filed a simple Notice of Appeal if it was genuinely intending to Appeal but again, purposely caused delay from 5^th May and chose to file papers and to pay the court fees on 9^th May 2023.”

4. In its oral submissions in support of the Appellant’s application for the court to grant it an extension of time to file Notice of Appeal to institute appeal proceedings in the Supreme Court against the judgment of the Employment Tribunal delivered on the 21^st April 2023, learned counsel submitted on the law as well as on the facts, which it argued, were the reasons why the Appellant did not file in court its Notice of Appeal on time.
5. On the law, it was the submission of learned counsel, that the Appellant which is aggrieved by the decision of the Employment Tribunal has a right of Appeal against the decision to the Supreme Court under rule 4 of Schedule 6 of the Employment Act, although there is no expressed statutory provision under the Employment Act governing the procedure for an appeal. Learned counsel submitted, that the fall-back position is to resort to rule 27 of the Appeal Rules under the Court Act. For ease of reference, rule 27 of the Appeal Rules reads;

“Rule 27 (1)

Where an Act allows an appeal to the Supreme Court from an order or decision of any commissioner or other tribunal or officer the procedure in such an appeal shall be in accordance with such Act and regulations there under and subject thereto, and in respect of all matters for which they do not provide, in accordance with these rules.”

6. It was submitted by learned counsel, that this rule leads one to rule 6 (2) of the Appeal Rules which learned counsel submitted, provides that an appeal in a civil matter should be filed within 14 days of the decision. The expressed provisions of Rules 6 (1) and 6 (2) of the Appeal Rules, read;

“6.(1) Every appeal shall be commenced by notice of appeal.

(2) The notice of appeal shall be delivered to the clerk of the court within fourteen days from the date of the decision appealed against unless some other period is expressly provided by the law which authorises the appeal.”

7. It was further submitted by learned counsel, that the Appellant’s failure to file Notice of Appeal within 14 days from the date of the decision doesn’t mean that an appeal is not possible and that its end of the matter. Learned counsel referred the court to rule 5 of the Rules and submitted, that under rule 5, the court does have a discretionary power to extend the time for the Appellant to file its Notice of Appeal to initiate appeal proceedings as is reasonable in the circumstances, and on any ground which the court considers sufficient. Rule 5 of the Appeal Rules is couched in the following terms;

“5. Any party desiring an extension of the time prescribed for taking any step may apply to the Supreme Court by motion and such extension as is reasonable in the circumstances may be granted on any grounds which the Supreme Court considers sufficient.”

8. With those rules in the background, on the facts, it was the submission of learned counsel for the Appellant, that in exercise of its discretionary power, the court must act judiciously, in that, it must take into account all the relevant facts and circumstances when determining whether to grant an extension of time or not.
9. The relevant facts which learned counsel put before the court to decide whether to grant and extension of time or not, were the facts averred by one Marcus Simeon in his affidavit in support of the application for an extension of time. Learned counsel put particular emphasis on the averments which in his opinion are most significant. One of those facts avers by Mr Simeon, is that a copy of the judgment of the Employment tribunal delivered on the 21^st April 2023 was only received on the 5^th May 2023, exactly 14 days later which judgment, according to learned counsel, was handed over to him. Learned counsel submitted, that the Appellant was not represented by counsel in the proceedings before the Employment Tribunal, although, when the judgment was read in open court, Mr Simeon who represented the Appellant (the Respondent then) was present.
10. It was the submission of learned counsel, that although Mr Simeon was told that a copy of the judgment would be made readily available for collection the following week after 21^st April 2023, when Mr Simeon went to collect a copy the following week, he was told that a sign copy was not ready. It was also the submission of learned counsel, that as deponed by Mr Simeon, when he brought to the attention of the clerk to the Employment Tribunal that he was running out of time to file an appeal, he was told by the clerk that time starts running from the date he receives a copy of the written judgment.
11. Learned counsel submitted, that what the clerk told Mr Simeon is exactly the same statement that can be found on the Employment Tribunal’s website copy of which Mr Simeon had exhibited to his affidavit as MS2, and which reads as follows;

“… upon receiving a copy of the judgment or ruling the party or parties dissatisfied with the decision may within 14 days file a notice of appeal to the Supreme Court.”

12. It was submitted by learned counsel, that this statement is actually misleading, and more so, given that Mr Simeon who is a lay person was made to believe that that statement is correct when in actual fact it is incorrect. It was the submission of learned counsel, that the Appellant relied on such misleading and incorrect statement, that it reasonably believed, that time was not going to start running until it receives a copy of the judgment. Learned counsel submitted, that the Appellant received a copy of the judgment on the 5^th May 2023, and that is proved by the stamp of the Employment Tribunal printed on the last page of the judgment dated 5^th May 2023, which learned counsel submitted, was a Friday. It was submitted by learned counsel, that in his affidavit, Mr Simeon avers, that counsel for the Appellant received a copy of the same judgment on the same day 5^th May 2023 at around 3:45 pm, and through email, he informed the Appellant that the last day to lodge an appeal against the decision was on the very same day a copy of the judgment was received, and that it was practically not possible to do so on that day.
13. Learned counsel took issue with the view, that the Appellant could still have filed a Notice of Appeal whilst awaiting for a copy of the judgment, contending, that this practice is an abuse of process of the court because one would not know at this stage what would the grounds of appeal, if any, be. Learned counsel argued, that it is bad practice and not proper for someone to file Notice of Appeal simply to protect its right of appeal. It was the contention of learned counsel, that the court should not encourage this practice as by doing so, it invites an abuse of the court’s process by encouraging an aggrieved party to commence appeal proceedings when that party doesn’t even know whether or not it should appeal against the decision.
14. Learned counsel cited the case of Eden Holistic Spa (Pty) Limited v Woodlands Holdings Limited (CA 15 of 2020) [2021] SCSC 693 (20 October 2021), which he submitted was before the rent board, and in which case judgment was delivered on the 11^th September 2020 … and copy of the judgment obtained on the 23^rd September 2020. The Appellant who was out of time to file Notice of Appeal for a mere 4 days was granted an extension of time. Learned counsel quoted an extract of the judgment of Dodin J who had said the following;

“Furthermore the period of 4 days outside the prescribed time is not unduly lengthy that it would cause undue prejudice to the Respondent”.

Learned counsel also quoted Dodin J as having said the following;

“I have also perused the memorandum of appeal and I find that there are reasonable serious question of law and facts to be tried?”

15. Learned counsel cited other case law authorities, notably, the Court of Appeal case of Yvon Dubel vs Yvette Juliette, in which case, he said, the court had stated, that the Applicant/Appellant must show that on the appeal they have an arguable case and the prospect of success is good on the balance of probabilities. As per learned counsel’s submission, in that case, the court did mention some of the factors which it ought to take into account, and that included, the length of the delay and the reasons for it. Learned counsel submitted, that in the instant case, it was a 4 day delay only, and the Appellant did act diligently, in that, immediately upon receipt of a copy of the judgment, it instructed counsel.
16. It was the submission of learned counsel, that based on the grounds of appeal in the Memorandum of Appeal appended to the Notice of Appeal, the Appellant has good grounds for a successful appeal. Learned counsel explained, that proceedings before the Employment Tribunal was wrongly instituted by the Respondent (the Applicant before the Employment Tribunal) as it was instituted against “a non-existent person, and a person with no legal personality”. Learned counsel submitted, that the Employment Tribunal erred in awarding the Respondent then, terminal employment benefits which it had not applied for before the Employment Tribunal as well as before the competent officer when its grievance was mediated as part of the grievance procedure. Learned counsel submitted, that an Applicant cannot have a different case before the Employment Tribunal than the one that was before the competent officer when the case was mediated, and that include, making different claims or demands.
17. Learned counsel also referred the court to the case of Kannus Supermarket vs Vaithiyanathan Uthrapathy (MA 200 of 2020) [2021] SCSC 320 (14 June 2021) in which case Dodin J had to decide whether the Applicant who was out of time for 8 days should be granted an extension of time. Learned counsel submitted, that the court citing other case law authorities, did grant an extension of time. Learned counsel also cited the case of Parcou vs Parcou SCA 32 of 1944, LC 93, in which case the Court of Appeal had cited the case of Farm AG v Barclays Bank SSC 2002. Learned counsel submitted, that in Parcou (Supra) the Court of Appeal reiterated, that the court does have an unfettered discretion to decide whether or not to grant an extension of time to file Notice of Appeal out of time after considering the length of the delay, the reasons for delay, whether the Respondent would be prejudice if an extension of time is granted, and whether the Applicant has an arguable case for a possible successful appeal. Learned counsel added, that in the Farm AG case, (Supra) the court also said, that in exercise of its discretion, the court must see that it does justice to the aggrieved party based on the facts and circumstances of the case.
18. Learned counsel quoted an extract from the Judgment in Kannus (Supra) which extract was taken from the Farm AG Case (Supra) which reads as follows;

“the legitimate expectations of a Respondent that no appeal would be lodged after the expiry of the notice period cannot in the interest of justice defeat an Applicant’s right to apply for leave out of time”

In that regard, it was the submission of learned counsel, that given that the Applicant lodged its appeal within 4 days after time had lapsed, the Respondent cannot reasonably argue, that it had a legitimate expectation that no appeal would be lodged against the judgment of the Employment Tribunal.

19. Learned counsel also relied on case law from other jurisdiction. Learned counsel cited the English Case of Germain v Republic Crim 1(a) 2005 5 March 2007 and submitted, that in this case, the court did hold, “that non-compliance with procedural requirements is not fatal to an appeal, provided that the Applicant shows “good cause” to justify non-compliance”. Learned counsel stated, that in Germain (Supra) the court also said, that in deciding whether to grant leave to appeal out of time, the court has to take into account all the circumstances of the case, including, the intention of the Applicant, diligence of counsel, explanation for the delay, extent of the delay, prejudice to the Respondent and the merit of the application in general. Learned counsel argued, that in the instant case, there has been due diligence on the part of counsel, in that, it was instructed on Friday the 5^th May 2023 and by Tuesday the following week, the Notice of Motion to which were exhibited the Notice of Appeal and the Memorandum of Appeal were filed in court.
20. Learned counsel cited another English case, a Court of Appeal case. That was the case of Denton and Others v TH White Limited [2014] 1 WLR 3926. Learned counsel submitted, that in Denton (Supra) the Court of Appeal formulated a three staged process for determining whether an extension of time should be granted. It was the submission of learned counsel, that the first of the three stages, is to ascertain whether there has been a serious or significant failure to comply with the rule. Learned counsel submitted, that if on application of the first stage process, the court concludes, that the breach or failure is not serious or significant, then leave should be granted. It was the submission of learned counsel, that on the facts and circumstances of the instant case, the breach or failure to comply is not serious or significant, and therefore, the court should grant an extension of time.
21. It was submitted by learned counsel, that the second stage of the process should be applied if the court finds, that the breach is serious and significant. That would require the court to consider why there was a failure to comply, or a default. It was also submitted by learned counsel, that the third stage of the process requires the court in every case, to consider other circumstances of the case in order to enable it to deal with the case justly. It was the submission of learned counsel, that in the instant case, application of the third stage is unnecessary since the breach or failure to comply is not serious or significant.
22. In his submissions in reply, learned counsel for the Respondent stated, that there is no issue about the 14 days legal requirement to file Notice of appeal which the Applicant has failed to do within the 14 days prescriptive period. Learned counsel took issue with the proposition that in the instant case, the court should condone the delay by stating, that by the very ruling of this court in the case of Amelie & Ors vs Cable & Wireless (Sey) Ltd (227) [2023] SCSC 227 (21 March 2023), the court should decline to grant an extension of time. It was submitted by learned counsel, that on the day the judgment was delivered in open court on the 21^st April 2023, the Applicant had its representative present in court, and the fact that it was not represented by counsel should not matter in deciding whether or not an extension of time should be granted.
23. It was the submission of learned counsel, that the representative of the Applicant who in fact has sworn the affidavit in support of the application, at paragraph 7 of its affidavit, avers, that he was there present when the judgment of the Employment Tribunal was delivered. Learned counsel submitted, that the presence of the Applicant’s representative when the judgment was delivered, is sufficient enough for him to have taken notice that an appeal has to be contemplated, and that the whole argument about what the Employment Tribunal’s website says about filing of notice of appeal to appeal against a judgment of the Employment Tribunal are not worthy of consideration to determine whether or not an extension of time should be granted, particularly, because the law on this matter is very clear, that notice of appeal should be filed within 14 days from the date of judgment. Learned counsel also submitted, that the Applicant’s failure to do so should not be condoned by the court.
24. Learned counsel for the Respondent cited the case of Chang Sing Chung v Kim Koon and Ors (SCA MA 38 of 2023) [2023] SCCA 48 (25^th August 2023), stating, that in this case, the Court of Appeal did emphasise that rules of court cannot be disobeyed, and therefore has to be followed. Learned counsel added, that this legal position has been repeatedly made by the Court of Appeal in many cases including, in the case of Avani Seychelles Barbarons Resort & Spa v Romeon Simeon. Learned counsel also took issue with counsel’s proposition, that the Applicant’s appeal has a good chance of success, stating, that at paragraph 17 of the affidavit in support of the application, the Applicant does not aver that his prospective appeal has a good chance of success. Learned counsel also took issue with the proposition by learned counsel for the Applicant that the Applicant has shown good cause for the court to grant an extension of time. Learned counsel stated, that the affidavit in support of the application does not disclose what the good cause is.
25. In essence, the argument of learned counsel against the grant of an extension of time to file Notice of Appeal is that, on the facts and circumstances of the instant case, on the day the judgment of the Employment Tribunal was delivered, the representative of the Applicant was present and therefore, it should have contemplated an appeal and was well within time to file Notice of Appeal within the 14 days limitation period. On the law, learned counsel for the Respondent’s argument, is that, although in its submissions learned counsel for the Applicant had stated that the Applicant has a good chance of success, it makes no averments in its supporting affidavit to that effect. Learned counsel also argued, that rules of courts are there to be obeyed, and that this principle has been repeatedly emphasised upon in many cases before the Court of Appeal.
26. Amid the submissions of learned counsel representing the parties, the question that this court has to determine, is whether, on the facts and circumstances of the instant case, the court should grant an extension of time for the Applicant to file a Notice of Appeal to commence appeal proceedings against the judgment of the Employment Tribunal delivered on the 21^st April 2023. I note, that the facts are largely not disputed between the parties. I will begin by addressing the point raised by learned counsel for the Respondent, that rules of court has to be obeyed, and that the court should not condone disobedience. That is true as a general rule. However, the mere fact of the existence of a rule that convey on the courts a discretionary power to decide whether or not to grant and extension of time to file Notice of Appeal, by implication, this indicates that although generally rules of court are there to be obeyed, it is not always the case that disobedience of the rules means a total bar to do something. Thus, because the Applicant has not filed its Notice of Appeal within the 14 days prescriptive time limit, it doesn’t mean that the door is shut and no appeal can be filed no matter what were the reasons for non-compliance.
27. As the law stands, it allows Notice of Appeal to be filed out of time. The question is whether in the instant case, the Applicant should be allowed to file its Notice of Appeal out of time. The Applicant’s positon is “yes”, because firstly, it was mislead into believing that the 14 days start counting upon receipt of a copy of the judgment. The Applicant was not represented by counsel at the Employment Tribunal, and therefore, could not have been expected to know when the 14 days start counting. The Applicant also sought to argue, that it had shown good cause why he could not file its Notice of Appeal within the 14 days limitation period, and that the delay of 4 days has not been serious and substantial not to condone it.
28. Learned counsel for the Respondent’s position, is that, the mere presence of a representative of the Applicant on the day the judgment was delivered, that was enough for the Applicant to take notice irrespective of whatever he was told, or read, for it to contemplate appealing against the decision, and it should have filed its Notice of Appeal pending receipt of a copy of the judgment.
29. Learned counsel did refer this court to the Amelie & Others case that was before this court. I wish at this juncture, to make the point that the facts of the Amelie case are different than the facts of this case. One of the most significant difference, is that in the Amelie’s case, the Applicants were represented by counsel. Learned counsel has stated, that this doesn’t make any difference. It is my considered opinion, that it does make a difference because based on case law, it would have been expected, that counsel should have exercise a higher degree of due diligence.
30. The case of Parcou (Supra), is the case law authority confirming the proposition, that the court does have a discretion to allow an appeal out of the prescriptive period. In that case, the court indicated, that the factors which it has to take into account in exercise of its discretion, include, the length of the delay, the degree of prejudice to the Defendant, and whether there is an arguable case on appeal. In the case of Farm AG (Supra), the court made similar point as regards to its discretionary power to extend the time limit when it said, that the court has an unfettered discretion when delay is alleged, and concerning extension of time to appeal against a decision as the present one. The court did say, that in exercise of its discretion, the court should do so for the purpose of doing justice to the aggrieved party in a particular case,
31. In determining this application, I have also had regard to the English case of Germain v Republic Crim 1(a) 2005, 5^th March 2007. In that case, the court made the point, that non-compliance with procedural requirement is not fatal to an appeal so long as good cause for non-compliance is shown. The court went on as to say, that in determining whether to grant leave or not, the court has to consider the whole facts and circumstances of the case, and that should include, the intention of the applicant, diligence of counsel, proper explanation for the delay, the extent of the delay, undue prejudice to the Respondent, and the overall merits of the application.
32. Learned counsel for the Applicant also cited the case of Denton and Others v TH White Limited [2014] 1 WLR 3925, which I have also had sight of. A case heard by the Court of Appeal in England. As correctly stated by learned counsel, the court formulated a 3 staged approach for determining whether an application for leave of appeal out of time should be allowed or not. The 1^st of the three stages, is for the court to assess the seriousness or the significant of the failure to comply. If the court’s assessment is that the failure is not serious or significant, then without visiting the two other stages, the court should allow the appeal out of time, and therefore, no need to proceed to the 2^nd stage and 3^rd stage. If however, it is the findings of the court that the failure or breach is serious or significant, then the court should proceed to the 2^nd stage and find out why the failure or breach occurred. The 3^rd stage requires the court to consider the whole facts and circumstances of the case so as to deal with the application justly.
33. All in all, the case law providing guidance as to how the court should approach an application of this nature, after having considered the affidavit evidence of Mr Marcus Simeon in support of the Applicant’s application as well as the affidavit evidence in reply and the submissions of both counsels for and against the grant of an extension of time, I note that the delay has been for a period of 4 days only which in my considered opinion is not serious or significant. I also note, that the reasons for the delay has been properly explained although, I have to say, had the Applicant been represented by counsel before the Employment Tribunal, I would have been expected from counsel a higher degree of due diligence and therefore considered the reasons and explanations given in a different light.
34. I further note, that no evidence of any prejudice to the Respondent should the court grant an extension of time has been laid before the court, and that there is an arguable case for appeal in the light of the legal and factual issues raised by learned counsel for the Applicant in its submissions, and that counsel for the Applicant did exercise due diligence, in that, immediately following receipt of a copy of the judgment of the Employment Tribunal, it immediately did the needful to commence legal proceedings for an order of this court to file Notice of Appeal out of time.
35. I therefore grant the application, in that, I grant the Applicant an extension of time to file its Notice of Appeal, which must be filed within 7 working days from the date of this ruling.

 

Signed, dated and delivered at Ile du Port on 1 July 2024.

 

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Adeline J