Electing No Case to Answer
I felt a deep need to prove myself in my early years of practice. If I could show how clever I was, I would. It was, therefore, fortunate that I conducted a case where I learned my lesson sometime in my seventh year of practice. We acted for a statutory body that sacked an employee over misconduct about ten years after the complaint was made. He sued them for his dismissal, seeking declarations and damages. We went to trial after my attempts to strike out the claim failed at the High Court and Court of Appeal. The trial was expected to be a short one. We were fixed for a day. The Plaintiff had one witness. We brought three. Their evidence was not expected to take long. Two were long-serving senior officers. The other was the legal officer. The senior officers were not keen to go to trial. They did not have experience giving evidence in court. Despite their age, around their forties, they were fearful. During dinner, they implored me if they could somehow avoid the witness box. After dinner, we went through the bundle of documents to familiarize ourselves with the likely documents they would be examined on. The legal officer had no such issues. She spoke rarely and had a look of amusement about her most of the time. By then, in my career, I had seen twelve to fifteen-year-old girls who had been through far worse conduct themselves with far more composure at the prospect of going into the witness box than those two grown men. Seeing men older than me get anxious about giving evidence was sad. In my attempt to allay their fears and calm them, I thought I was being clever by explaining my argument as to why the Plaintiff would fail even without their evidence. Firstly, the Plaintiff’s witness statement alone was insufficient to prove his case. He had to call at least another witness to prove his case on a balance of probabilities. Secondly, the Plaintiff did not submit sufficient evidence to prove his case. Thirdly, given the direction the Plaintiff’s evidence pointed to, it diverted from his pleaded case. They quickly gathered that, going by my explanation, their evidence was superfluous to win the case. I came to that conclusion already but thought to call them all the same to complete the case. Nail the coffin, so to speak. However, from then on, they assailed me with flattery, compliments, praise, and admiration for my cleverness, courtroom skills, and yada yada. In short, that night, for that brief moment, in their deep desperation and anxiety, I was to them the most outstanding lawyer that ever lived lah. After a savage round of arse kissing, I felt myself start to waver. I don’t know where I found the strength to tell them I would think it over a night’s rest and let them know what I decided the following day, but I did. Unfortunately, by the time I got to my hotel room, the poison of praise had reached my bloodstream. I was up all night and part of the morning. But I was not weighing up whether to call them as witnesses. I was carefully considering if I could succeed with an election of no case to answer. A defendant makes an election of no case to answer after the plaintiff closes his case. In doing so, the defendant says the plaintiff’s case is defective or hasn’t been proven. It is a problem of form, substance, or both. Lord Omerod, in an English Court of Appeal case, explained the two circumstances when a defendant would make such an election: There are, however, two sets of circumstances under which a defendant may submit that he has no case to answer. In the one case there may be a submission that, accepting the plaintiff’s evidence at its face value, no case has been established in law, and in the other that the evidence led for the plaintiff is so unsatisfactor or unreliable that the court should find that the burden of proof has not been discharged. Per Lord Omerod in Storey v Storey [1960] 3 All ER 279 By my assessment, the Plaintiff’s case fulfilled those conditions. I had never before done a case, electing no case to answer. The thought of winning the case without the defence being called in a civil suit incredibly excited me and appealed to me. It contrasted with criminal practice, where arguing the prosecution had no case to answer was standard practice. The thought of appearing like a hero to those cowards fed my delusions of grandeur. There was also their promise to put in a good word for me. If all this sounds grotesque, as I find now, I do apologize, but you sometimes have to excuse the immature sentiments of an insecure young man. The next morning, I declared the senior officers were unnecessary for trial. They were all smiles. Full of jokes and laughter. Like little kids again. I was their bestest friend in the world. Amazing lawyer. The way they behaved, you would think they were recently acquitted of an offence. The Plaintiff’s case unfurled, tattered and incomplete, as I anticipated. After the Plaintiff closed his case, I informed the court the Defendant elected to submit no case to answer. The judge was surprised. I felt I could win it. The court fixed the schedule for the exchange of after-trial submissions and decision date. I went back and reported to my boss my conduct of the trial. He was not pleased. It was one of the rare times he was upset with how I conducted a case. ‘Fahri, electing no case to answer was an unnecessary risk you didn’t have to take. The Plaintiff’s evidence binds us. If we don’t call a witness to rebut, an adverse inference can be drawn against us. I know you are convinced you are right. The case fulfils the elements. But what if you are wrong?
