Case No: B3/2005/2078
Neutral Citation Number: [2006] EWCA Civ 92
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRESTON COUNTY COURT
His Honour Judge Appleton 
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 21st February 2006

Before :

LORD JUSTICE BROOKE
Vice-President of the Court of Appeal (Civil Division|)
LORD JUSTICE RIX
and
LORD JUSTICE MAURICE KAY
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Between :

	Neina Graham	Claimant/
Appellant	
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	Chorley Borough Council	Defendants/
Respondents	

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(Transcript of the Handed Down Judgment of
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David Pilling (instructed by Kevills) for the Appellant
Timothy Edge (instructed by Forbes) for the Respondents

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Judgment
INDEX

		Paragraph	
Part 1.	Introduction	1	
Part 2.	The statements of case and the evidence before the judge	3	
Part 3.	The defendants’ submission of no case to answer and the judge’s ruling	12	
Part 4.	The correct destination of the appeal	17	
Part 5.	The judge’s failure to put the defendants to their election	25	

Lord Justice Brooke: 
Part 1.  Introduction
1.	This is an application by the claimant for permission to appeal against an order made by Judge Appleton in the Preston County Court, sitting in Burnley for this purpose, on 18th March 2005 whereby he dismissed the claim in this action and directed that judgment be entered for the defendants.  The matter raises an unusual procedural point about the proper destination of the appeal, and a substantive point about the judge’s failure to put the defendants to their election when they made a submission of “no case to answer” halfway through the trial.  Because of the uncertainties as to whether this court possessed jurisdiction, I directed that the matter be listed for hearing on notice on the procedural issue, with the appeal to follow if by one route or another this court had jurisdiction to hear the appeal and if permission to appeal was granted.  The hearing of the appeal was noteworthy for the fact that the two-hour hearing was conducted entirely by video-link, with the court sitting in London and both counsel addressing the court from the court centre in Preston.
2.	It will not be possible to understand the procedural issue without first describing the claim, the evidence given at the hearing, and the circumstances in which the claim came to be dismissed.
Part 2.  The statements of case and the evidence before the judge
3.	The case arose out of an accident in the claimant’s garden on 26th August 1999.  The claim form appears to have been issued within the primary limitation period, and the particulars of claim are dated 22nd October 2002.  By her particulars of claim the claimant asserted that prior to the accident the defendant council, who were her landlords, had carried out maintenance work on flagstones which formed a path at the rear of the property. Six months before her accident she noticed that the corner of one of the flagstones had broken away.  She had told the council twice about this defect between May and July 1999, but they failed to repair it. She said that on 26th August 1999 she was walking along the footpath when she fell after “catching her right foot against a raised flagstone”. She alleged that the council had failed to discharge their statutory duty under the Occupier’s Liability Act 1957 and/or the Defective Premises Act 1972 and/or had been negligent.  We are no longer concerned with a claim under the Occupier’s Liability Act.
4.	So far as is now material, the council in their defence stated that the duty under the 1972 Act arose only when they had constructive knowledge of the relevant defect.  The claimant did not notify them of the defect, and they were not negligent.  They had taken all reasonable care in the circumstances.  The action was in due course allocated to the multi-track.
5.	At the trial two witnesses were called on behalf of the claimant.  I can deal with the second witness quite briefly.  Mr Skillern was the claimant’s partner at the time of her accident, and he took photographs of the defective flagstone a day or two afterwards.  He was sure that he had telephoned the repairs section of the defendant council on several occasions before the claimant’s accident to complain about the state of the footpath.  He said he had no DIY skills, and all he could do was to carry on reporting the defect until someone came out and fixed it.  In the meantime he told the children that it would be safer for them to play on the grass and not go on to the footpath.  He observed that the council had not produced a log of the telephone calls they received, and he was sure that if they had it would have confirmed the fact that he had made these complaints.
6.	In the documents before the court there were a number of different accounts of how the accident occurred.  In chronological order they started with a note taken by the ambulance men who took the claimant to hospital to the effect that she “fell in back garden”.  A doctor in the accident and emergency department noted “Was playing with puppy in garden and tripped”.  There is a further note, apparently made by a doctor in the orthopaedic department, which suggests the accident occurred “while playing with puppy: tripped”.  A little later there is a note in different handwriting “Injured right knee today in her garden while playing with puppy”.
7.	In a medico-legal report dated 12th April 2000 Mr S J Shaw, who is a consultant orthopaedic surgeon, recorded that the claimant had told him two days earlier that on the day in question she had tripped over an allegedly uneven path surface in her garden and twisted her knee.  In her first witness statement dated 16th May 2003 she said that she was “walking down the garden when my right foot caught against the raised flagstones and I fell forwards”.  In a second statement, dated 13 August 2004, she said: 
“As, on the day of the accident, I was training my puppy in the back garden, I was walking from the house down the garden path when my right foot caught against the raised flagstone and I fell forwards.”
8.	The claimant told the judge that Mr Skillern had taken the photographs while she was in hospital, probably on the day after the accident.  She said that she tripped on the raised flagstone as she was walking down the garden path to check the washing on the line.  Ten minutes earlier she had been playing with the puppy: she did not think that “training” was the right word.  She could not explain why she had not mentioned the puppy or the washing line in her first witness statement.  She was adamant that she had never connected her tripping incident with the activity of playing with the puppy.
9.	She said that in the hospital she was in a lot of pain and on a lot of drugs, so that mentioning the puppy may have been the first thing that came into her mind.  She appears to have twisted her knee badly when she fell: she said that before she even hit the floor her knee was round the back of her leg.  She suggested that the later hospital notes must have been taken from what the doctor in the Accident and Emergency (“A & E”) department was told.
10.	She said that she had visited the council’s offices in June 1999 and reported the state of the path to a lady behind a desk.  No form was completed at that time.  She had read the council’s records of the repairs they had carried out, but she said that the council had disclosed no records of complaints when the repairs had not been done.
11.	She accepted that she was partly to blame for the accident for not looking down on the path as she went along.  In re-examination she gave a graphic description of the accident and its aftermath.  She said she had never been in such pain, and an ambulance man gave her morphine as soon as he arrived.  When she got to the hospital she did not know what was going on around her.
Part 3.  The defendants’ submission of no case to answer and the judge’s ruling
12.	When Mr Skillern left the witness-box, Mr Edge, who appeared for the defendants, said:
“Your Honour, before I call evidence, I wonder if I may address your Honour in relation to the claimant’s case?
Judge:	By all means”
13.	Mr Edge then submitted that the claimant had failed to prove either that (a) there was a defect giving rise to a foreseeable risk of injury; and/or (b) that any defect caused the fall. In particular he submitted that the claimant’s account of the accident was simply not believable. Three separate medical notes recorded the puppy as intrinsically linked to the accident, and that was the basis on which she was treated in hospital. 
14.	Counsel for the claimant submitted in reply that at the time the medical notes were made his client was heavily sedated and in a lot of pain. It did not matter whether at the time of the accident she was playing with the puppy or checking the washing.  In any event playing with the puppy in the garden was not inconsistent with tripping over the garden path, and this consideration could not of itself defeat her action, especially on a submission of “no case” halfway through a trial.  The precise mechanics of the fall would not matter to medical staff in the same way as they would have done to a solicitor taking a statement.  What was important to the medical staff was that the injury was sustained on the garden path when the claimant tripped.
15.	The judge held that there was no case to answer and directed that judgment be entered in the defendants’ favour without proceeding with the trial.  He said that the claimant’s problem lay in proving that the accident happened as she now said it did. Her various explanations were “simply not good enough to satisfy the court as to how the accident occurred”. Given the varying explanations she had advanced the court could not possibly find on the balance of probabilities that the accident happened in the way she now described.
16.	The judge added that section 4 of the Defective Premises Act imposed a duty to take reasonable care to ensure that the claimant was reasonably safe from injury caused by defects, where the defendant knew or ought to have known of the defect. This defect, at most, was an inch in depth, which would not be considered dangerous if it were encountered on a highway, under Mills v Barnsley Borough Council [1992] PIQR P291. He said that it would be “a complete nonsense” if a higher duty was imposed on authorities in respect of a back garden, than in respect of a highway outside the property.  He said that the claim was plainly not going to succeed and that it would not be in accordance with Part 1 of the CPR for the case to continue. 
Part 4.  The correct destination of the appeal
17.	The question whether this court has jurisdiction to hear this appeal arises in this way.  Is a decision made in the defendant’s favour by a circuit judge at the trial of an action in the multi-track on a submission of no case to answer, when the defendant has not been put to his election, a “final decision” for the purposes of para 4(a) of the Access to Justice Act 1999 (Destination of Appeals) Order 2000?  If it is indeed a final decision, appeal will lie to this court.  If not, it lies to the High Court.
18.	Para 4(a) of the Access to Justice Act 1999 (Destination of Appeals) Order 2000 provides that:
“An appeal shall lie to the Court of Appeal where the decision to be appealed is a final decision –
a)	in a claim made under Part 7 of the Civil Procedure Rules 1998 and allocated to the multi-track under these Rules.”
Para 1(2)(c) provides:
“(c) ‘final decision’ means a decision of a court that would finally determine (subject to any possible appeal or detailed assessment of costs) the entire proceedings whichever way the court decided the issues before it.”
19.	On 18th March 2005 the judge made two decisions:
i)	That he accepted the defendant’s submission that there was no case to answer (Decision 1);
ii)	That judgment be entered in favour of the defendants (Decision 2).
If the claimant had submitted that the judge should not have heard a submission of no case to answer without first putting the defendants to their election, the judge might have made a third decision, namely that they need not be put to their election (Decision 3).
20.	When the matter is analysed in this way, it will be seen that Decisions 1 and 3 could not be treated as final decisions.  They were not decisions which would have finally determined the entire proceedings whichever way the court decided the issues before it.  Appeal would therefore lie to the High Court.  Decision 2, however, is clearly a final decision.  When it comes to the entry of judgment, judgment can be entered in favour of one party or another, but whichever way it is entered it is final, so far as that level of court is concerned.  Appeal against a judgment on a claim lies to the Court of Appeal.
21.	In this matter the only order that was formally made by the court was the order that judgment be entered for the defendants, and it is against that order the claimant is seeking to appeal.  I identified the importance of the form of the court’s order in Scribes West v Relsa Anstalt (Practice Note) [2004] EWCA Civ 965 at [29]; [2005] 1 WLR 1839. After reviewing the relevant authorities I said:
“The judges of this court (and the staff at the Civil Appeals Office) have to interpret the order of the lower court as we find it. The relevant decision is the Court’s order, and the Destination Order determines where appeal should lie from that order… The appeal court must be the one that is readily ascertainable from the face of the court’s order, and not one which would or might have been ascertainable if the judge had made a different order. It would be intolerable if appeal courts had to be subjected to a complicated examination of the types of order that might have been made if the parties had dealt with things differently in the lower court, merely for the purpose of determining whether they possess jurisdiction. The destination of the appeal should be ascertainable from the language of the order” (at para 29, emphasis supplied).
22.	In these circumstances appeal from what I have called Decision 2 properly lies to this court.  If for some reason it is desired in circumstances like these that appeal should lie to the High Court, the county court should be invited to amend its order under the slip rule in order to set out the different decisions which the judge made on the occasion in question, so that the true nature of what is being appealed will be clear on the face of both the order of the county court and the notice of appeal.
23.	The position would of course have been different if the judge had put the defendants to their election, and they elected to call no evidence.  If what was then being appealed was the judge’s acceptance or rejection of the defendants’ submissions at the end of a trial at which they had called no evidence, his decision would have been a final decision whichever way he decided it.
24.	The Court of Appeal therefore has jurisdiction to hear this appeal, and we granted permission to appeal.  
Part 5.  The judge’s failure to put the defendants to their election
25.	The claimant complains that the judge was guilty of a serious procedural irregularity in failing to put the defendants to their election before being willing to entertain their submission that there was no case to answer, and then applied the wrong standard of proof when dismissing her claim.
26.	I am sorry that there is still any lingering uncertainty as to the practice to be followed if a defendant’s advocate wishes to persuade a judge to enter judgment in his client’s favour at the conclusion of the claimant’s evidence.  In pre-CPR days the rules were quite clear.  In Alexander v Rayson [1936] 1 KB 169 this court said (at p 178) that this was “not only an irregular but a most inconvenient procedure”; and (at p 180) that it sincerely trusted “that the like may never occur again”.  In Lawrie v Raglan [1942] 1 KB 152 Lord Greene MR said in a similar situation that it was unfortunate that the trial judge did not follow the practice
“which ought to be followed in such cases, as has been quite clearly laid down in this court, of refusing to rule on the submission unless counsel for the defendant said he was going to call no evidence.  That must be regarded as the proper practice to follow.”
27.	In the 1999 White Book only a few lines had to be devoted to explaining this practice at p 669 (note 35/7/3).  In those days the order of speeches at a trial was set out in RSC O35 r7.  To a large extent this depended on whether a defendant had or had not elected not to adduce evidence (see r7(3)-(5)).
28.	Today the practitioner is confronted with two full, closely printed pages of the White Book on the same topic (see 2005 White Book, Vol 1, note 32.1.6, pp 784-6).  Uncertainty seems to have been introduced when publicity was given to a decision of David Foskett QC, sitting as a deputy High Court judge, in Mullen v Birmingham City Council, The Times, 29th July 1999.  He suggested 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, although there might be exceptional circumstances in which he would do so.  This decision was followed by four unreported decisions of this court in which different members of the court contributed observations about the (rare) circumstances in which it might be appropriate for a judge to receive a submission of no case to answer without putting the defendants to their election.  See Boyce v Wyatt Engineering [2001] EWCA Civ 692; Lloyd v John Lewis Partnership [2001] EWCA Civ 1529; Bentley v Jones Harris & Co [2001] EWCA Civ 1724; and Miller (t/a Waterloo Plant) v Cawley [2002] EWCA Civ 1100.
29.	In Benham Ltd v Kythira Investments Ltd [2003] EWCA Civ 1794, a division of this court headed by the former vice-president, Simon Brown LJ, endeavoured to give clear guidance for the future.  After analysing the cases he said in authoritative terms (at para 32):
“Let me state my central conclusion as emphatically as I can.  Rarely, if ever, should a judge trying a civil action without a jury entertain a submission of no case to answer.  That clearly was the court’s conclusion in Alexander v Rayson and I see no reason to take a different view today, the CPR notwithstanding.  Almost without exception the dangers and difficulties involved will outweigh any supposed advantages...Any temptation to entertain a submission should almost invariably be resisted.” 
Keene LJ agreed, and Scott Baker LJ, also agreeing, said, in a one-paragraph judgment (at para 36):
“It seems to me that the wise words of Romer LJ in Alexander v Rayson in 1936 still hold good today.  Only in the most exceptional circumstances should a judge entertain a submission to dismiss an action at the close of the claimant’s evidence without putting the defendant to his election.  This was not such a case and it is difficult to envisage many situations when such a course would be appropriate.”
30.	If, quite exceptionally, a judge is willing to entertain a submission of no case to answer without putting the defendants to their election, Simon Brown LJ made it clear that if the defendants have material evidence they are ready to give on a central issue the judge should not judge the merits of the claimant’s case at this half way stage on the balance of probabilities.  Instead he should ask himself:
“[H]ave the claimants advanced a prima facie case, a case to answer, a scintilla of evidence, to support the inference for which they contend, sufficient to call for an explanation from the defendants?  That it may be a weak case and unlikely to succeed unless assisted, rather than contradicted, by the defendant’s evidence, or by adverse inferences to be drawn from the defendant’s not calling any evidence, would not allow it to be dismissed on a no case submission.”
31.	I commend the brief summary which sets out the position concisely in the current edition of the Green Book (The Civil Court Practice, Vol 1, October 2005 re-issue) on p 452 at note CPR 24 [4B].  It would be of advantage if the editors of the leading law report series could give serious consideration to publishing this judgment, or the judgments in Benham, or both, to dispel any remaining uncertainties that may still be lurking among judges and practitioners on this question.
32.	What happened at Burnley that day provides a vivid example of what may go wrong when an important decision of the Court of Appeal is not reported in the Weekly Law Reports or the All England Law Reports and a judge tries a civil action without, apparently, having a copy of the White Book or the Green Book on his desk.  Mr Pilling, who appeared for the claimant, asked the judge, who was clearly not familiar with the five unreported Court of Appeal decisions, for a short break so that he could look at what the White Book said about submissions of “no case”.  When granting this request, the judge commented:
“I think it is not terribly helpful.  It contains information from previous White Books that they should have jettisoned but never had the courage to do so.  The only authority, I think, is from a deputy High Court judge [Mr David Foskett QC].”
The judge said that this authority did not create a precedent binding on any other first instance judge.  
33.	Counsel then read to the judge the relevant paragraph of the White Book (see now, the 2005 White Book, Vol 1, p 784 for the paragraph that starts “The traditional submission...”).  After he had read the words set out in the passage of Simon Brown LJ’s judgment in Benham which appear in para 30 above, the judge said:
“Well, with respect to the learned Lord Justice, simply trying cases at first instance, if there is a serious credibility problem which will not be affected one way or the other by any evidence from the defendants, the court cannot just say, ‘Well, we had better let the thing run’.  That is not the CPR way of doing things.”
34.	The judge was in error when he adopted this attitude, just as he had been in error when he tried to summarise the effect of the latest White Book guidance from memory without having the book in front of him.  The important point which the Court of Appeal was making in Benham was that if a case follows the course adopted by the judge, the claimant is simultaneously being deprived of the opportunity of making a weak case stronger by eliciting favourable evidence from the defendants’ witnesses and of the opportunity of inviting the court to draw adverse inferences from the defendants’ failure to give evidence (because the judge has not put them to their election). 
35.	In this case the defendants were scheduled to call two witnesses: Dr Hamilton, who was to speak to the note he had made in the A and E department six years earlier, and Mr Holmes, who was to give evidence about the council’s arrangements for dealing with tenants’ complaints.  It is clear that the judge did not believe that either witness could give material evidence in helping him to decide how the accident happened. He said to the claimant’s counsel: 
“[W]hatever evidence the defendants were to call, your case is not ever going to get any better”. 
Later on, he said: 
“The crucial question for this court is whether the claimant is to be accepted and believed in the account she has given of the accident. There is no other evidence anybody can possibly give to avoid the court in having to make its mind up about whether that is an acceptable account or not. It is as simple as that.”
36.	After considering the various explanations given by the claimant as to the precise circumstances of her accident, the judge asked in the course of his judgment: 
“The court simply applies the standard test which is simply this: Has she discharged the proving of her case on the balance of probabilities?  In other words, is the court satisfied that it is more likely to be correct than not that what she says about the accident is correct? How can the court possibly proceed when there are at least three competing versions from her about what has happened? The answer is it cannot. The matter has been drawn to my attention because we have finished the evidence of the Claimant, but it cannot possibly be remedied by anything that anybody is going to say, were the defendants to be made to call evidence”. 
37.	It is obvious that through his failure to apply the judgment in Benham (which was not available to him, except through the summary in counsel’s White Book) the judge applied the wrong test (for the correct test see para 30 above), and this was a serious procedural irregularity (see CPR 52.11(3)(b)).  Was his decision therefore unjust?  To answer this question it is necessary to consider the evidence the defendants’ witnesses might have given.  
38.	Dr Hamilton said in his witness statement that he remembered the claimant because her injuries were quite severe and seemed extreme in relation to the mechanism of the injury.  He therefore considered her memorable.  We cannot be sure that cross-examination might not have elicited from him a reply that she had taken so much morphine and was in so much pain that no reliance could be placed on her precise account of the accident, particularly as he had been puzzled that a mere trip in the garden could have done so much damage.  After all, photographs were taken of the flagstone, as the supposedly guilty party, within two days of the accident.  Dr Hamilton may have been willing to say that it was much more likely that she tripped over something solid, like the edge of the flagstone.
39.	Although Mr Holmes could not say anything useful about how the accident happened, cross-examination might have made it clear that the defendants simply had not retained the original records they had made of complaints, whether over the telephone or at their offices, and he could not say one way or another whether complaints had been made about the flagstone before the accident, as both the claimant and Mr Skillern strongly asserted.  All he could produce were the records of the instructions given to the council’s staff when complaints were remedied.  Clarification of the fact that the council could not possibly say that no complaints were made would have strengthened the claimant’s case on liability.
40.	And if the defendants had elected to call no evidence, it would have been open to Mr Pilling to invite the judge to draw adverse inferences along these lines from the failure to put Dr Hamilton and Mr Holmes in the witness-box.
41.	In my judgment the procedural irregularity did cause injustice, in that it deprived the claimant of an opportunity that should have been open to her to strengthen her case in one way or another.
42.	I have not overlooked the fact that the judge considered that the defendants were not in any event in breach of any duty of care because if this had been a highway case involving a pavement they would not have been held liable.  Without deciding the point, I can see a good deal of difference between a defect in a council’s pavement and a trap that lay at the joint between a flat concrete path through a garden and the flagstones which formed the continuation of the path.  In my judgment the appropriate course is to set aside this judgment and to direct a retrial before a different judge.
43.	I would therefore allow this appeal.
Lord Justice Rix:
44.	I agree.
Lord Justice Maurice Kay:
45.	I also agree.