Benham Ltd v Kythira Investments Ltd & Anor

In a civil trial without a jury, a judge should rarely, if ever entertain a submission of no case to answer at the close of the claimant’s evidence without requiring the defendant to elect whether to call evidence. The course is justified only in the most exceptional case, where an obvious factual or legal flaw makes failure inevitable.

If the submission is entertained, the question is whether the claimant has a realistic prospect of success, not whether the judge considers the claimant’s case proved on the balance of probabilities. Where the defendant may have material evidence, a weak prima facie case may suffice because adverse inferences from silence, or the defendant’s evidence, may strengthen it.

Benhams, an estate agency, claimed commission from Kythira in respect of the acquisition of two properties. It alleged that its employee, Mr Gee, had orally been retained as Kythira’s agent. There was no written agency agreement and Mr Gee could not be called, so the claim depended substantially on documents and circumstantial evidence.

At the close of Benhams’ evidence, His Honour Judge Geddes, sitting in the High Court, accepted Kythira’s submission of no case to answer without requiring Kythira to elect whether to call evidence. He dismissed the claim with costs. Benhams appealed. The central issue was whether that course and the judge’s assessment of the evidential threshold were correct.

1. Appeal allowed unanimously. Simon Brown LJ, with whom Keene and Scott Baker LJJ agreed, held that the judge should not have entertained the submission without requiring Kythira to elect whether to call evidence.

2. The ordinary civil-trial practice remains that a defendant making such a submission should be put to election. A judge who decides the case at the close of one party’s evidence risks forming an initial factual view on an incomplete record and may cause a costly retrial if that view is reversed. The Civil Procedure Rules did not displace that practice. Only an exceptional, obvious flaw of fact or law making the claim bound to fail could justify departing from it.

3. The judge had also applied the wrong test. Having entertained the submission, he asked which inference was more probable on Benhams’ evidence. The correct question was whether the claim had a real prospect of success. In a case where the defendants’ witnesses could give material evidence, that could be expressed as whether there was a prima facie case, some evidence supporting the proposed inference, or sufficient evidence calling for an explanation.

4. The possibility that a defendant may call no evidence, allowing adverse inferences to be drawn, must inform that assessment. Such inferences may strengthen even a weak prima facie case. The court also observed that, after a defendant elects to call no evidence, the final issue is whether the claimant has proved the claim on the balance of probabilities; adverse inferences may then tip that balance.

5. Benhams’ documentary and circumstantial evidence crossed the threshold. It was not merely fanciful. The claim was remitted for a retrial before a different judge, with the defendants ordered to pay the appeal and first-trial costs.

• Court of Appeal (Civil Division) Allowed the appeal and remitted the claim for retrial before a different judge: [2003] EWCA Civ 1794.
• High Court of Justice (Queen’s Bench Division) His Honour Judge Geddes dismissed the claim with costs on 13 May 2003 after accepting a submission of no case to answer without requiring an election. No citation was stated.