Civil procedure — Trial in multi-track before circuit judge — Respondents submitting no case to answer — Judge failing to put respondents to election whether to give evidence — Judge accepting submission and entering judgment for respondents — Whether “final decision” with appeal lying to Court of Appeal — Whether judge applying correct test — Appeal allowed
The appellant suffered injuries when she fell in her garden. The respondent council were her landlords and, prior to the accident, had undertaken maintenance work to flagstones that formed a path at the rear of her property. The appellant had noticed a broken flagstone around six months prior to the accident and had reported the defect to the respondents, but it had not been repaired. She said that she had been injured after “catching her right foot against a raised flagstone”. She alleged that the respondents had failed to discharge their statutory duty under the Defective Premises Act 1972 and/or had been negligent. In their defence, the respondents said that they had not been notified of the defect and had not been negligent since they had taken all reasonable care.
The action was allocated to the multi-track. At the end of the appellant’s evidence, the respondents submitted that she had failed to prove that a defect had given rise to foreseeable injury and/or that any defect had caused the fall. The judge held that there was no case to answer and directed that judgment be entered for the respondents without putting them to an election whether to present evidence. He held that, given the varying explanations advanced by the appellant for the accident, the court could not find on the balance of probabilities that it had happened in the way that she described in court.
The appellant appealed, complaining that the judge had been guilty of procedural irregularity in failing to put the respondents to election before entertaining their submission of no case to answer and that he had applied the wrong standard of proof when dismissing her claim. An issue arose as to whether the decision was a “final decision” for the purposes of para 4(1) of the Access to Justice Act 1999 (Destination of Appeals) Order 2000, so that an appeal properly lay to the Court of Appeal.
Held: The appeal was allowed.
The order that entered judgment in favour of the respondents was a final decision, an appeal against which properly lay to the Court of Appeal, which had jurisdiction to hear it: Scribes West Ltd v Relsa Anstalt (No 2) [2004] EWCA Civ 965; [2005] 1 WLR 1839 considered.
Only in the most exceptional cases, should a judge entertain a submission to dismiss an action at the close of a claimant’s evidence without putting the defendant to election. That had not changed under the Civil Procedure Rules. If a defendant had material evidence that it was ready to give on a central issue, the judge should not assess the merits of the claimant’s case at the halfway stage on the balance of probabilities. He should ask whether the claimant had advanced a prima facie case to support the inference for which it contended.
In the present case, the judge had applied the wrong test. This was a serious procedural irregularity that had caused injustice, in that it had deprived the claimant of the opportunity to strengthen her case: Benham Ltd v Kythira Investments Ltd [2003] EWCA Civ 1794 applied.
The judgment should be set aside and a retrial before a different judge should be ordered.
David Pilling (instructed by Kevills, of Chorley) appeared for the appellant; Timothy Edge (instructed by Forbes, of Blackburn) appeared for the respondents.
Eileen O’Grady, barrister
