The judge allowed the defendant’s submission of no case to answer without putting them to their election and again the claimant’s appeal succeeded. The trial judge had been persuaded that the rule in Alexander -v- Rayson had been altered by the Civil Procedure Rules ‘and that as a general rule a judge was not required to put defence counsel to his election, although there might be exceptional circumstances in which he would do so’.
Held: The Civil Procedure rules did not change the rule: ‘Since the judge determined the point there has been a decision of this court on the point. It is called Boyce -v- Wyatt Engineering and Others . In paragraphs 4 to 6 of the judgment, Mance LJ (with which the other members of the court agreed) said that, on the contrary, the general rule was as stated in Alexander -v- Rayson. There were good reasons for that rule and it should be, as a general rule, adopted unless there are circumstances which indicate the contrary. It is unnecessary to refer to what Mance LJ said in any more detail, it can be read by those who wish to do so. I have no doubt that if the judge had had the benefit of that authority, rather than the authority to which he was referred, he would have come to the conclusion that he should put the defendants’ counsel to his election. What he would have elected to do we do not know. But it seems to me that there is really nothing in this point bearing on the appeal because the judge made his decision. If he was right on the question of causation, then the appeal fails: if he was wrong on that point, then the appeal succeeds and there will have to be a new trial or continuation of this trial by Judge Cooke.’
Judges:
Sir Murray Stuart-Smith, Aldous, Chadwicj LJJ
Citations:
[2001] EWCA Civ 1529
Links:
Jurisdiction:
England and Wales
Citing:
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 andpound;1200 and contracted that certain services in connection with the flat would be performed. The plaintiff sent the . .
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 by:
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: 08 June 2022; Ref: scu.188852
