Permission granted to appeal to Court of Appeal (Civil Division) - grounds changing significantly shortly before trial - procedure to be adopted

Shire v Secretary of State for Work and Pensions: CA (Lord Woolf Chief Justice, Lords Justice Chadwick and Buxton): 13 October 2003

The claimant asylum seeker was granted permission to appeal against the decision of the social security commissioners that she was not entitled to income support pursuant to regulation 70 of the Income Support (General) Regulations 1987 (as amended by regulation 8(3)(c) of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996), because she had not submitted a claim for asylum on arrival in the UK.

Three grounds of appeal were identified in her notice of appeal and in junior counsel's skeleton argument.

Leading counsel was then instructed and, with the hearing date rapidly approaching, a fresh skeleton argument was served in which the whole nature of her case changed significantly.

No attempt was made to file amended grounds of appeal.

At the start of the hearing of the appeal the court considered what procedures should be adopted in such circumstances.

Nicholas Blake QC and Ranjiv Khubber (instructed by Sameena Ahmed) for the claimant; Tim Ward (instructed by solicitor of the Department for Work and Pensions) for the secretary of state.

Held, dismissing the appeal, that a litigant who had been granted permission to appeal to the Court of Appeal but subsequently wished to present a case which differed substantially from that on which permission had been granted should inform the court and the other party in writing, indicating the proposed nature of the new case; that the court should also be informed whether the other party objected to the proposed change; that the court could then give directions as to whether, and how, the matter should proceed; that the court could dispose of the case summarily where there was no merit in the new grounds or it could decide that, in the interests of justice, the litigant should not have the opportunity to change the grounds at a very late stage; and that, in the circumstances, it had been appropriate to hear the appeal but there was no merit in it.