PIBULJ Articles

Making submissions of no case to answer: a storm in a teacup?

Since the Civil Procedure Rules 1998 came into force the Court of Appeal has considered no less than six times the question of the procedure for putting Defendants to their election when making a submission of no case to answer at the end of a Claimant’s case.

The cases of Benham Ltd v Kythira Investments Ltd [2003] EWCA Civ 1794, and Graham v Chorley Borough Council [2006] EWCA Civ 92 appear to have brought finality to the issue.

The position pre-CPR

Before the CPR came into effect the matter was uncontroversial, and Courts were guided by cases such as Alexander v Rayson [1936] 1 KB 169 (at 178):
‘We think … this is highly inconvenient.  For the judge in such cases is also the judge of fact, and we cannot think it right that the judge of fact should be asked to express any opinion upon the evidence until the evidence is completed.  Certainly no one would ever dream of asking a jury at the end of a plaintiff’s case to say what verdict they would be prepared to give if the defendant called no evidence, and we fail to see why a judge should be asked such a question in cases where he and not a jury is the judge that has to determine the facts.  In such cases we venture to think that the responsibility for not calling rebutting evidence should be upon the other party’s counsel and upon no one else.’

See also Lawrie v Raglan [1942] 1 KB 152, which stipulated that judges should follow the by now established practice ‘… of refusing to rule on the submission unless counsel for the defendant said he was going to call no evidence.’

Post-CPR

Uncertainty entered the frame following a decision of David Foskett QC, sitting as a Deputy High Court judge in Mullen v Birmingham City Council, The Times, 29 July 1999.  In that case he suggested that in the light of new case management powers given to the courts under the new regime and the overriding objective, judges now had a greater discretion to entertain and rule on a defendant’s submission of no case to answer without requiring it not to call evidence.  This case was followed by four unreported decisions of the Court of Appeal on the question.  Although they re-emphasised the general rule that judges ought not to hear such a submission without putting the Defendant to its election, each contained statements from different members of the Court about what type of exceptional circumstances might warrant that course .  Unfortunately, they did not go very far in defining them.  For example:
‘There may be some cases, probably rare, in which nothing in the defendant’s case could affect the view taken about the claimant’s evidence or case, but this is not one of them, and care would be required in identifying them.’
per Mance LJ, Boyce v Wyatt Engineering [2001] EWCA Civ 692 at para. 5, or:

‘Some flaw of fact or law may, for example, have emerged for the first time, of such a nature as to make it entirely obvious that the claimant’s case must fail, and it may save significant costs if a determination is made at that stage.’.
per Mance LJ, Miller (t/a Waterloo Plant) v Cawley [2002] EWCA Civ 1100, at para. 12

Benham Ltd v Kythira Investments Ltd

In Benham Ltd v Kythira Investments Ltd [2003] EWCA Civ 1794, Simon Brown LJ attempted to distil those varying opinions into clear guidance for the future.

Again, it was made clear that the general rule was that if a defendant applied to make a submission at half time, he should be put to his election.  In fact, once that has happened, the situation is entirely straightforward.  Having been put to his election, either the defendant withdraws the submission and proceeds to call his evidence, or the evidence is closed and the parties proceed to final submissions.  In those circumstances, the test to be applied when hearing submissions is a balance of probabilities as it normally would be at the end of any trial.  Simon Brown LJ approved the judgment of Mance LJ in the case of Miller (t/a Waterloo Plant) v Cawley [2002] EWCA Civ 1100, at paragraphs 18 and 20 respectively:
‘The issue after an election is … not whether there was any real or realistic prospect that the claimant’s case might be made out or any case fit to go before a jury or judge of fact.  It is the straightforward issue, arising in any trial after all the evidence has been called, whether or not the claimant has established his or her case by the evidence called on a balance of probabilities.’

‘… once a defendant has elected to call no evidence, … the only issue then becomes whether in the light of the evidence already adduced the claimant has made out his case on the balance of probabilities …’

However, in the Benham case, Simon Brown LJ also considered the test that should be applied when a judge is entertaining a submission of no case to answer and has not put the defendant to its election.   He said that if defendants had material evidence going towards a central issue in the case, the judge should not judge the merits of the Claimant’s case at the half way stage on a balance of probabilities.  Instead he should apply the following test: 
‘Have the claimants advanced a prima facie case, a case to answer, a scintilla of evidence, to support the inference for which they contend, sufficient to call for an explanation from the defendants?  That it may be a weak case and unlikely to succeed unless assisted, rather than contradicted, by the defendant’s evidence, or by adverse inferences to be drawn from the defendant’s not calling any evidence, would not allow it to be dismissed on a no case submission.’

The point Simon Brown LJ is making here, is that a Claimant meeting a submission of no case to answer ought in fairness to have the opportunity of making one of two submissions: either that the defendant’s coming evidence may assist him or, where a defendant has been put to his election and chosen not to call evidence, that the Court is entitled to draw adverse inferences from the exercise of that choice.  Where a Defendant is not put to his election, the Claimant is prevented from making either submission, so the judge should consider both aspects himself.

Graham v Chorley Borough Council

The Court approved the judgment in Benham.  This was a case brought by the Claimant against her landlords, alleging breaches of the Defective Premises Act 1974.  During the trial the defendant made a submission of no case to answer, maintaining that the Claimant had failed to prove either that there was a defect giving rise to a foreseeable risk or that any defect caused the fall.  The judge received the submission without putting the Defendant to her election, and found that the Claimant had failed to prove on a balance of probabilities that the accident had happened in the way described by the Claimant.  He entered judgment for the Defendant. 

This decision was overturned by the Court of Appeal for two reasons.  Firstly, because the judge ought not to have entertained the submission without putting the Defendant to its election.  Secondly, having done so, the judge decided the issue on a balance of probabilities, whereas, the correct test in these circumstances is that set out in Benham, and is considerably more lenient to Claimants for the reasons given above.

Conclusions

It is now plain that the wider judicial discretion and case management powers created by the CPR were not intended to interfere with the civil courts’ long standing approach to entertaining submissions of no case to answer.  The general rule remains that such a submission should not be entertained without putting the defendant to its election.

Upon being put to its election, the defendant will then either withdraw the application and the court shall proceed to hear the defendant’s evidence, or the evidence is closed, and the parties proceed to final submissions, with the Claimant entitled to invite the court to draw adverse inferences from the defendant’s decision not to call any evidence (if so advised).  The judge will decide the case as normal on a balance of probabilities.

Apparently there remain exceptional circumstances where a judge may entertain a submission of no case to answer without putting the defendant to its election.  If those circumstances arise, the test to be applied is Simon Brown LJ’s ‘scintilla of evidence’ test set out above.

However it is still unclear what those exceptional circumstances may be.  In Benham, Simon Brown LJ disapproved comments from the judge below suggesting that two conditions should be met, firstly that there was nothing in a defendant’s evidence (i.e. the defendant’s pleadings and statements) that could affect the view taken of the claimant’s evidence, and secondly that it was entirely obvious that the claimant’s case must fail and there was nothing in the defendant’s case that will alter that view.  Simon Brown LJ said that the judge should have directed himself not to the defendant’s pleadings and statements, but rather to consider whether the defendant’s witnesses ‘might be expected to have material evidence to give on an issue in the action’.  Further, he said that ‘whether it was entirely obvious that the claimant’s case must fail’ was not the test to apply as to whether the submission should be received, but the test to apply if the judge did receive it.

Unfortunately, the judge did not set out what criteria he considered should be applied instead. 

This debate is a storm in a teacup.  Where an application to make a submission of no case to answer is made, the general rule to apply is obvious – the defendant must be put to his election. 

The Court of Appeal has not so far identified those exceptional circumstances where a submission is heard without the defendant being put to its election, but it would seem that such a circumstance would indeed be rare.  Given the Court of Appeal’s visible irritation at having been troubled with this issue on as many as six occasions since the introduction of the CPR, and its reluctance to clearly identify any exceptions to the long-standing general rule, I suggest that in the future most courts would be very reluctant to consider entertaining a submission of no case to answer without putting a defendant to its election first.

Joanna Droop

12 King’s Bench Walk
Temple
London EC4Y 7EL