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 appealed that order, the defendant denied that an appeal lay.
Held: The appeal succeeded. An order such as this was a final order so as to allow an appeal to the Court of Appeal rather than to the High Court. The claimant said that the court should have put the defendant to its election. The judge had been wrong to listen to the submission without first putting the defendant to an election. He had done so because he had found the claimant’s evidence not credible. The failure to put the defendant to the election deprived the claimant of her right to ask the court to draw adverse influences from any failure to put evidence forward.


Lord Justice Brooke (Vice President of the Court of Appeal, Civil Division) Lord Justice Rix Lord Justice Maurice Kay


Times 20-Mar-2006, [2006] EWCA Civ 92




Access to Justice Act 1999 (Destination of Appeals) Order 2000 49a)


England and Wales


CitedMills v Barnsley Borough Council CA 1992
The court considered the extent of defect in a highway needed to found a claim that it was dangerous. It emphasised that the duty must not be made too high, balancing the public need against the private interest.
Steyn LJ said: ‘For my part I . .
CitedScribes West Limited v Relsa Anstalt and Another (No 2) (Practice Note) CA 20-Jul-2004
The court gave guidance on the destination of appeals from county court cases. It was vital to identify the precise nature of the order under appeal: ‘The judges of this court (and the staff at the Civil Appeals Office) have to interpret the order . .
CitedAlexander 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 . .
CitedLawrie v Raglan CA 1942
The court considered the obligation on a judge to put a defendant to his election before hearing a submission on whether there was a case to answer. It was unfortunate that the judge had not followed the practice ‘which ought to be followed in such . .
CitedBentley 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 . .
CitedMullen v Birmingham City Council QBD 29-Jul-1999
Under the new rules, judges were required to take greater control over court proceedings, and accordingly had the power to entertaining a submission of no case to answer at the close of the claimant’s case and without first requiring the defendant . .
CitedMiller (T/A Waterloo Plant) v Cawley CA 30-Jul-2002
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 . .
CitedBoyce 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 . .
CitedBentley v Jones Harris and Company CA 2-Nov-2001
Latham LJ said: ‘it will only be in a rare case that the judge should be asked to determine the issues before him before all the evidence has been completed. However, it seems to me that, if a judge concludes at the end of a claimant’s evidence, . .
CitedLloyd v John Lewis Partnership CA 1-Jul-2001
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 . .
CitedBenham 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 . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Litigation Practice

Updated: 30 November 2022; Ref: scu.239882