Konodyba v Royal Borough of Kensington and Chelsea

An appellate court may refuse an adjournment where an appellant abandons the ground for which permission was granted and seeks to substitute a wholly new factual and legal case. Where the appeal has been prepared on its original basis, diverting it into the new dispute may be procedurally unfair to the parties. Refusing the adjournment and dismissing the abandoned appeal does not breach Article 6 rights. Fair-trial rights operate for all parties, and the court may maintain proper appellate procedure where the appellant had an opportunity to advance the proposed point earlier. A new ground not raised before the relevant public authority, on review, at first instance, or when permission to appeal was sought cannot be entertained or referred to the European Court of Justice in the pending appeal.

The applicant challenged decisions by the respondent authority that she was not entitled to housing assistance because she was subject to immigration control. HHJ Behar dismissed her appeal in the Wandsworth County Court on 9 February 2009. Permission to appeal was granted on an argument based on the Bambaust doctrine and Article 12 of Regulation No. 1612/68. Before the appeal was heard, the applicant repudiated that argument, abandoned the appeal as permissioned, and sought an adjournment to advance a new case based on self-employment and Article 7 of Directive 38 of 2004. That case had not been advanced before the authority, the review officer, the county court, or on the permission application. The central issue was whether the appeal should be adjourned and the new case referred to the European Court of Justice.

1. The Court of Appeal unanimously refused the adjournment and dismissed the appeal as abandoned. The appeal had been prepared on the basis of the previously litigated point, which the applicant no longer wished to pursue.
2. Per Lord Justice Rix, allowing the appeal to proceed on an entirely new factual and legal basis would divert the litigation into a different dispute and would be procedurally unfair to the parties. The court expressed no view on the merits of the proposed new case. Any valid new argument could be put afresh to the respondent authority.
3. Per Lord Justice Wall, refusal of the adjournment and dismissal of the appeal did not breach Article 6 rights. Fair-trial rights operated for both parties, and the court was entitled to enforce its proper procedure where the applicant had ample opportunity to advance the proposed point earlier.
4. Per Lord Justice Aikens, the proposed Article 7 argument could not be the subject of the present appeal because it had not been raised before the respondent authority, the review officer, HHJ Behar, or when permission to appeal was granted. It could not therefore be referred to the European Court of Justice.
5. No reference was made to the European Court of Justice. The order was: application dismissed.

1. Court of Appeal (Civil Division): refused an adjournment, dismissed the appeal as abandoned, and declined to make a reference to the European Court of Justice. [2009] EWCA Civ 890
2. Wandsworth County Court: HHJ Behar dismissed the applicant’s appeal on 9 February 2009, rejecting her argument concerning her immigration-control status.
3. Royal Borough of Kensington and Chelsea: decisions dated 18 March 2008 and 22 August 2008 concluded that the applicant was not entitled to housing assistance because she was subject to immigration control.