Miller (t/a Waterloo Plant) v Cawley

A trial judge may, in exceptional practical circumstances, entertain a submission of no case to answer without requiring the defendant to elect not to call evidence. The inquiry is whether the claimant has no real prospect of success, and it requires considerable caution. If the claimant has a real prospect of success, the judge must hear the defendant’s evidence and determine the facts on the balance of probabilities.

Where the defendant elects to call no evidence, the trial evidence is complete. The judge must then decide whether the claimant has proved the case on the balance of probabilities. It is erroneous to decide only whether the claimant had a real or reasonable prospect of success.

The claimant sought payment for building works at a property where he alleged that the defendant had contracted with him. The defendant denied giving the instructions. At the close of the claimant’s evidence in Cardiff County Court, the judge required the defendant to elect whether to call evidence. She elected not to do so and made a submission of no case to answer.

The judge rejected that submission by asking whether the claimant had a real prospect of success, but then entered judgment that a contract had been proved. The defendant appealed. The central issue was the correct test after a defendant has elected to call no evidence, and the appropriate appellate disposal where that test was not applied.

1. Appeal allowed. Lord Justice Mance, with whom Lord Justice Latham and Lord Justice Simon Brown agreed, held that the judgment entered for the claimant could not stand. The judge had required the defendant to elect not to call evidence, but then applied the less demanding real-prospect test.

2. At the close of the claimant’s case, a judge may in the exercise of discretion entertain a submission of no case to answer without an election. The applicable inquiry is whether the claim has no real prospect of success, by analogy with Civil Procedure Rules Part 24. That course requires considerable caution. It interrupts the ordinary trial process and, if an erroneous dismissal is overturned, can cause the cost of a retrial. If the claim has a real prospect of success, the judge must hear the defendant’s evidence and decide the facts on all the evidence.

3. Once the defendant has been put to election and elects to call no evidence, the evidence is complete. The sole issue is whether the claimant has established the claim on the balance of probabilities. There is then no place for a finding merely that the evidence could support a verdict, or has a real prospect of success. This was consistent with the caution described in [2001] EWCA Civ 692, and with [1936] 1 KB 169.

4. A judge should not, without an election, undertake a halfway assessment of whether the claimant has proved the case on the balance of probabilities. The procedural rules provide for suitable pre-trial challenges; absent a successful challenge, the trial should ordinarily proceed to completion.

5. The court did not order a retrial. It remitted the matter to HHJ Moseley QC to hear further submissions and decide, on the evidence already called and the defendant’s election, whether the claimant had proved a contract on the balance of probabilities. Costs below were left for the judge after reconsideration; the appellant was ordered to pay the respondent’s appeal costs.

• Court of Appeal (Civil Division): Appeal allowed. The judgment entered for the claimant was set aside and the matter remitted to HHJ Moseley QC to determine the preliminary issue on the balance of probabilities.
• Cardiff County Court: HHJ Moseley QC required the defendant to elect whether to call evidence. After her election not to do so, he rejected a submission of no case to answer and entered judgment that a contract had been proved.