In my early litigation years, I instructed counsel to attend a Fast Track Trial for an employers’ liability personal injury trial in Dudley. My client’s accident happened on the 1st October 2013, so had his accident happened the day before, the s69 Enterprise and Regulatory Reform Act 2013 wouldn’t have applied, and a breach of the H&S regulations would have been a breach of duty of care.
My client had to prove negligence. However, I got a call from Counsel at lunchtime advising me that her opponent had made a halftime submission and the claim had been dismissed. Brand. New. Information.
What was this half time submission?
No case to answer
A no case to answer submission is made at the end of the Claimant’s case. A judge’s consideration of such a submission is similar to a summary Judgment under CPR Part 24, but there is an important distinction.
With summary Judgment, whilst the Judge must not conduct a mini-trial, the Judge would have some consideration as to what evidence would likely be heard a final hearing. Instead, the Judge would have heard the Claimant’s evidence. The Claimant’s evidence is all the Judge would consider.
However, there is an additional caveat.
Electing not to call evidence
Unlike in criminal cases, the Defendant must risk not being able to call any evidence when making a submission of ‘no case to answer’. This is potentially to ensure the power is used sparingly.
Boyce v Wyatt Engineering [2001] EWCA Civ 692 was a case where a Claimant appealed the dismissal of his personal injury claim against three Defendants. The trial judge concluded, without hearing the Defendants’ evidence, that the Claimant had no chance of success. The Court of Appeal overturned the decision, stating that if CPR granted the Judge the power to give summary judgment or strike out a claim without the Defendant’s evidence, such power should be used sparingly. Allowing an appeal would give the Claimant a chance to prove his case but could increase costs and delay. If the appeal was dismissed, the Claimant would face judgment based on unchallenged evidence. The Court of Appeal upheld the view that it was improper for a judge to express an opinion before all evidence was heard. In this case, the judge wrongly decided that the Claimant was entirely to blame for the accident causing his injuries.
Therefore, if the Defendant gambles and it is unsuccessful, they lose their chance to challenge the Claimant’s evidence with their own. It is extremely risky unless you are quite certain.
However, that does not mean that a Court will always compel a Defendant to elect not to call evidence.
Difference between electing and not electing
The case of Miller v Cawley [2002] EWCA Civ 1100 deals with the practical difference of electing and not electing (when a Court exercises discretion to not require the Defendant to elect).
The Defendant appealed a decision regarding a contract for building works at her home with the Claimant. She argued that the judge wrongly required her to make an election after the Claimant’s evidence, and after choosing not to present evidence, the judge should have assessed whether the Claimant proved his case on the balance of probabilities, not just on the likelihood of success.
The Court allowed the appeal, stating that while judges can entertain no case submissions sparingly, the correct standards apply depending on whether the Defendant is put to election. If the Defendant is asked to elect not to call evidence, then the test is whether the Claimant has proven on balance of probability their case. However, if they are not required to elect to not call evidence, then the test is whether the Claimant has no real prospect of success. This means when a Defendant does not elect, the test is a higher threshold to meet (fanciful rather than real Swain v Hillman [2001] 1 All E.R. 91).
Is it worth making the submission?
The question will be whether the Defendant is being put to election. The Court ought not to allow a halftime submission without election unless it is clear on the face of it that the Claimant’s case is weak or that the evidence that could be provided by the Defendant would make very little influence. However, such a position still requires the Defendant to establish that the Claimant has no prospect of success. It would essentially be akin to a summary judgment application which, prior to the evidence being test, was borderline and, upon testing the evidence of the Claimant, crossed the threshold.
A Claimant can have a reasonable prospect of success but fail to establish on the balance of probability to prove their pleaded case. However, it is such a risk to elect to establish that on the balance of probability, the Claimant has failed to prove their case.
If, for example, the Claimant makes a concession that cannot be remedied and will lead to the conclusion that the Claimant could never prove the necessary element on the balance of probability, then with the client’s instruction, one could make the application.
Given that the Court is the determiner of whether to accept or reject evidence, after careful consideration, it maybe that the Court determines that the evidence as it stands is finely over the evidential threshold for proving the element. On that basis, one should be very confident that the Judge will not come to an adverse conclusion that eradicates the Defendant’s ability to controvert the Claimant’s evidence.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.