Graham v Chorley Borough Council

A judge trying a civil action without a jury should rarely, if ever, entertain a defendant’s submission of no case to answer at the close of the claimant’s evidence without first putting the defendant to an election. In the exceptional case where the submission is heard despite that omission, and the defendant has material evidence on a central issue, the court must ask whether the claimant has a prima facie case or case to answer sufficient to call for an explanation. It must not decide credibility or the balance of probabilities prematurely. The irregularity is serious where it deprives the claimant of the opportunity to strengthen the case through defence evidence or adverse inferences. The formal entry of judgment determines the destination of the appeal.

The claimant sued her landlords, a borough council, following a fall on a garden path. She relied on the Defective Premises Act 1972 and negligence. During the trial, after the claimant’s evidence, the judge accepted a submission of no case to answer and entered judgment for the council without requiring it to elect whether to call evidence.

The claimant sought permission to appeal. The Court of Appeal considered both whether the formal order was appealable to that court and whether the judge had committed a serious procedural irregularity by determining credibility and the balance of probabilities before hearing the council’s evidence.

1. Appeal destination. The Court of Appeal had jurisdiction. Under paragraphs 4(a) and 1(2)(c) of the Access to Justice Act 1999 (Destination of Appeals) Order 2000, the acceptance of a no-case submission and any decision about election were not themselves final decisions. The formal entry of judgment for the defendants was final because it determined the proceedings at that level. Applying Scribes West v Relsa Anstalt (Practice Note) [2004] EWCA Civ 965, the destination had to be ascertainable from the order actually made.
2. Submission of no case to answer. The practice stated in Alexander v Rayson [1936] 1 KB 169 and Lawrie v Raglan [1942] 1 KB 152 remained applicable. As explained authoritatively in Benham Ltd v Kythira Investments Ltd [2003] EWCA Civ 1794, a judge should almost invariably resist such a submission at the close of the claimant’s evidence unless the circumstances are truly exceptional. The defendant should ordinarily be required to elect whether to call evidence.
3. Applicable test. If the submission is exceptionally entertained while the defendant has material evidence on a central issue, the judge must ask whether the claimant has a prima facie case, a case to answer, or sufficient evidence to call for an explanation. A weak case must not be dismissed merely because it may need assistance from defence evidence or adverse inferences. The judge below instead decided whether the claimant had proved her account on the balance of probabilities.
4. Injustice and outcome. That approach was a serious procedural irregularity under rule 52.11(3)(b) of the Civil Procedure Rules 1998. It caused injustice because the claimant lost the opportunity to obtain helpful evidence from the council’s witnesses or invite adverse inferences if they gave no evidence. The highway-pavement comparison under section 4 of the Defective Premises Act 1972 did not resolve the liability issue; the Court of Appeal noted the possible distinction between a highway defect and a garden-path trap without deciding it. The judgment was set aside and a retrial before a different judge directed. Rix LJ and Maurice Kay LJ agreed with Brooke LJ.

1. Court of Appeal (Civil Division) — Allowed the appeal, set aside the county court judgment and directed a retrial before a different judge: [2006] EWCA Civ 92.
2. Preston County Court — On 18 March 2005, His Honour Judge Appleton accepted a submission of no case to answer during the trial and directed judgment for the defendants.