Lau v Dragon Cat Ltd: EAT clarifies extension of time rules for respondents' answers

The Employment Appeal Tribunal has confirmed that the strict approach governing extensions of time for lodging appeals does not apply with equal force to the late service of a respondent's answer, following an appeal from a Registrar's Order in Lau v Dragon Cat Ltd.

The dispute arose from a liability judgement of the Employment Tribunal following hearings in November and December 2024. After Caspar Glyn KC, sitting as Deputy Judge of the High Court, permitted five of 28 grounds of appeal to proceed to a full hearing, an order required the respondents to lodge an answer within 28 days of its seal date. Due to an administrative error, the order was served only on the first respondent's insolvency practitioners and not on the second and third respondents directly — an omission the EAT partially rectified by email on 11 August 2025. The second and third respondents eventually served their answer 16 days out of time, prompting an application for an extension.

His Honour Judge Tayler endorsed the reasoning of HHJ Burke QC in the unreported decision Slingsby v Griffith Smith Solicitors UKEAT/0619/07/MAA, holding that the severe principles derived from United Arab Emirates v Abdelghafar [1995] ICR 65 — long established as the touchstone for appeals lodged out of time — do not translate to the late delivery of a respondent's answer.

The rationale is principled. When a party brings an appeal, they are initiating fresh proceedings to disturb a concluded judgement of a tribunal that has already tried the case on its merits. Finality and certainty justify stringency at that stage. A respondent's answer, by contrast, is a step within existing proceedings rather than the institution of new ones. The appropriate analogy, as Mummery J identified in Abdelghafar, is with interlocutory defaults — where courts will ordinarily grant an extension absent irreparable prejudice, so that cases proceed to determination on their merits.

HHJ Tayler added a further consideration specific to the appellate function. The EAT is a superior court of record whose jurisdiction is confined to questions of law. Where an appeal is undefended, the tribunal does not simply allow it by default: the merits of the legal question must still be examined, and it is preferable that they are examined with the benefit of full argument on both sides. A late answer, far from undermining the process, may assist the EAT in reaching a sound conclusion on the point of law in issue.

Under Rule 37(1) of the Employment Appeal Tribunal Rules 1993, the EAT retains a broad power to extend any time limit, including one fixed by its own order. Rule 26 reinforces this: where a respondent fails to comply with an order to deliver an answer, the tribunal may debar them from further participation or make such other order as it considers just — a formulation that itself implies a general discretion rather than automatic sanction.

Applying those principles to the facts, HHJ Tayler granted the extension. The initial failure to serve the order on the second and third respondents weighed heavily. The delay was short, no prejudice to the claimant was identified in respect of the appeal itself, and the grounds raised questions of law that would benefit from proper argument. The appeal from the Registrar's Order was accordingly refused.

The decision confirms that general discretionary principles govern extensions of time for respondents' answers: the length of delay, the reasons for it, and any prejudice to the other party are the material considerations — not the unforgiving calculus applicable to appeals.