At the end of the claimant’s case the defendant wished to submit that there was no case for her to answer. The judge then put the defendant to an election as to whether or not she would call any evidence. She appealed.
Held: It is not appropriate for a judge to apply the test of whether the claimant had any reasonable prospect of establishing liability of the part of the defendant, without first putting the defendant to an election. Having put her to the election it was wrong thereafter to seek to apply that test. A submission of no case to answer might be heard without requiring an election, but this could only be done with extreme caution. Having once heard a submission without an election, if the court rejected the submission, it must then hear the defendant’s case. After an election, the issue was not whether the claimant had any reasonable prospect of success, but, having heard the evidence which was to be called, whether in fact the claim was or was not made out. ‘considerable caution is necessary before a judge entertains such a submission [of no case to answer] or undertakes such a determination, without requiring an election [by the defendant not to call evidence]. The trial is now in progress, and although the test (no real prospect) differs from that applicable after hearing all possible evidence (balance of probability) caution is dictated. . . The submission interrupts the ordinary trial process, and it is not desirable that, during that process, the judge of fact should be put in a position where he may find himself having to express first an initial view on the basis of taking the claimant’s evidence alone and then (if he allows the claim to proceed) a further final view after taking into account further evidence, even though he does so by reference to different tests.’
Judges:
Lord Justice Simon Brown, Lord Justice Latham, Lord Justice Mance
Citations:
Times 06-Sep-2002, [2002] EWCA Civ 1100, [2002] All ER (D) 452
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Boyce v Wyatt Engineering and Others CA 1-May-2001
The discretion of a judge to deal with a case at the close of the claimant’s case, and without putting the defendants to their respective election was only to be exercised with the greatest caution. There was a risk that, if the claimant appealed . .
Cited – Bentley v Jones Harris and Co CA 1-May-2001
The judge below acceded to a submission of no case to answer without putting the defendant to his election.
Held: ‘At the time of this trial it was, it seems, common ground between counsel for both parties and the judge that under the CPR . .
Cited – Alexander v Rayson CA 1936
The action was for arrears of rent. The evidence at trial was that the plaintiff granted a lease to the defendant at a rent of pounds 1200 and contracted that certain services in connection with the flat would be performed. The plaintiff sent the . .
Cited – The Royal Brompton Hospital National Health Service Trust v Hammond and Others (No 5) CA 11-Apr-2001
When looking at an application to strike out a claim, the normal ‘balance of probabilities’ standard of proof did not apply. It was the court’s task to assess whether, even if supplemented by evidence at trial, the claimant’s claim was bound to fail . .
Cited by:
Cited – Logan v Commissioners of Customs and Excise CA 23-Jul-2003
The respondent had at the close of the claimant’s case submitted that it had no case to answer. The tribunal agreed and discharged the claim without hearing from the respondent. The employer appealed the EAT’s decision to allow her appeal.
Cited – Benham Limited v Kythira Investments Ltd and Another CA 15-Dec-2003
The appellant complained that the judge had accepted a case of no case to answer before the close of the claimant’s case and without putting them to their election. The claimant estate agents sought payment of their account. The defendants alleged a . .
Cited – Neina Graham v Chorley Borough Council CA 21-Feb-2006
The defendant had submitted after the close of the claimant’s case that it had no case to answer. The judge did not put the defendant to its election as to whether to call evidence, but instead decided to accede to the submission. The claimant now . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 26 August 2022; Ref: scu.174437