Submission of no case

Miller (trading as Waterloo Plan) v Cawley (CA TLR 6 September)

When at the end of the claimant’s case in a civil action the defendant wishes to submit that the claimant had not, on his own evidence, made out his case on the balance of probabilities, the general practice is to entertain such an application only on the basis of an election by the defendant to call no evidence. If a judge does embark at the closure of the claimant’s case on a determination whether the claimant’s case had any real prospect of success without requiring an election, the judge would, if he determined the claimant’s case had no such prospect, dismiss the claim and that would, subject to any appeal, be the end of the matter. If, on the other hand, the judge determined that the claimant’s case had a real prospect of success, he must go on to hear the defendant’s evidence and thereafter to find a factual position on the whole of the evidence and on the balance of probabilities.