This was an application against an order made in the County Court dismissing the claimant's claim and directing that judgment be entered for the defendants.
The claimant alleged that she had been injured when she fell after catching her foot against a raised flagstone in her back garden. She claimed that by failing to repair the flagstone despite several requests to them to do so, the defendants, who were her landlords, had failed to discharge their statutory duty under the Defective Premises Act 1957.
In the documents before the court at trial there were a number of different accounts of how the accident occurred. Following submission of claimant's evidence counsel for the defendant submitted that there was no case to answer. The trial judge agreed and directed that judgment be entered in the respondent's favour without hearing the defendant's evidence. Instead, the trial judge held that given the varying explanations of the circumstances regarding the fall that the claimant had advanced the court could not possibly find on the balance of probabilities that the accident happened in the way she now described.
The issues at appeal where: 1) whether the Court of Appeal had jurisdiction to hear the appeal; and 2) whether the trial judge was guilty of a serious procedural irregularity in failing to put the defendant to its election before being willing to entertain its submission that there was no case to answer; and 3) whether or not the trial judge had applied the wrong standard of proof when dismissing the claim.
The Court of Appeal held that the decision of the judge, made at the trial of an action in the multi-track when the defendant had not been put to his election was a "final decision" for the purposes of Paragraph 4(a) of the Access to Justice Act 1999 (Destination of Appeals) Order 2000. Accordingly, the decision had finally determined the entire proceedings and the appeal lay with the Court of Appeal.
The Court further held that the Court of Appeal had provided previous guidance on issues surrounding submissions of no case to answer in the case of Benham Ltd vs Kythira Investments Ltd  EWCA Civ 1794. In that case it was made clear that if defendants had material evidence that they were ready to give on a central issue the judge should not judge the merits of the claimant's case at a half way stage on the balance of probabilities. Instead he should ask himself whether the claimants had advanced a prima facie case, to support the inference for which they contend. That it may be a weak case and unlikely to succeed unless assisted, rather than contradicted, by the defendant's evidence, or by adverse inference to be drawn from the defendants not calling evidence, would not allow it to be dismissed on a no case submission.
Through failure to apply the principles set out in Benham the trial judge applied the wrong test and this was a serious procedural irregularity, which caused injustice in that it deprived the claimant of the opportunity that should have been open to her to strengthen her case in one way or another.
Accordingly, the judgment of the trial judge was set aside and a retrial before a different judge was ordered.
*Full case details
21 February 2006, Court of Appeal, Brooke LJ, Rix LJ, Maurice Kays LJ,  EWCA Civ 92
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The judgment clarifies uncertainty that had built up as to the practice to be followed if a defendant's advocate desired to persuade a judge to enter judgment in his client's favour at the conclusion of the claimant's evidence. Prior to the Civil Procedure Rules it was clear that such tactics were not only irregular but a most inconvenient procedure.
Uncertainty had arisen because of suggestions that things had changed under the Civil Procedure Rules and that as a general rule a judge was not now required to put defence counsel to his election.
The judgment dispelled those uncertainties, making clear that if a case follows the course adopted by the trial judge the claimant is simultaneously being deprived of the opportunity of making a weak case stronger by eliciting favourable evidence from the defendant's witnesses and of the opportunity of inviting the court to draw adverse inferences from the defendant's failure to give evidence.