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In civil trials, the Plaintiff opens their case by calling their witnesses to substantiate their case. After the Plaintiff rests their case, i.e. after their witnesses are cross-examined by Defendant, the Defendant then calls their witnesses to rebut the Plaintiff’s case.
As the Defendant, what if you feel that the Plaintiff via their witnesses and documents have actually failed to establish their own case on a balance of probabilities? Must you still go ahead with the full length of trial and call your own witnesses as well?
The Principle
A submission that there is ‘No Case To Answer’ (“NCTA”) by the Defendant is made at the close of the Plaintiff’s case. A NCTA submission is made when the Defendant considers that the Plaintiff’s case does not prove their case on a balance of probabilities. As such, the Plaintiff moves the Court to dismiss the Plaintiff’s claim without the Defendant having to present their case.
An NCTA can also be submitted in a criminal trial where the principles are the same but this is done when the Defence team is of the opinion that the Prosecution’s case failed to establish a finding of guilt.
The Law
The English Court of Appeal case of Storey v Storey [1961] P 63, CA is a leading authority on to the area of NCTA. Lord Omerod held as follows:
“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 unsatisfactory or unreliable that the court should find that the burden of proof has not been discharged.“
In brief, a NCTA submission is made in one of two instances,
where the Plaintiff has failed to make a case in law; OR
where the evidence submitted by the Plaintiff both by their witness’s oral testimony and their documentary evidence is unsatisfactory
A submission of NCTA does not change the dynamics of burden of proof in a civil suit. The burden of proof still rests upon the Plaintiff. This was held by the Federal Court in Syarikat Kemajuan Timbermine Sdn Bhd v Kerajaan Negeri Kelantan Darul Nairn [2015] 2 CLJ 1037:
“The legal burden of the existence of the settlement agreement was with the plaintiff as the claimant. The fact that the defendant led no evidence or called no witnesses did not absolve the plaintiff from discharging its burden in law. Despite the fact the defendant did not call any witness and that even if the plaintiff’s evidence was unopposed, this did not automatically equate to that evidence satisfying the burden of proving the existence of the settlement agreement borne by the plaintiff. The evidence adduced by the plaintiff must still be sufficient to prove the existence of the settlement agreement. The plaintiff has not discharged the burden; Mohd Nor Afandi Mohamed Junus v. Rahman Shah Alang Ibrahim & Anor (refd). (para 56).“
Sounds like a good deal doesn’t it?
You don’t have to call your witnesses as the Defendant and the Plaintiff still has the burden of proving their case?
So what’s the downfall of making a submission of NCTA?
In the Federal Court case of Takako Sakao (F) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751:
“In our judgment, two consequences inevitably followed when the first respondent who was fully conversant with the facts studiously refrained from giving evidence. In the first place, the evidence given by the appellant ought to have been presumed to be true. As Elphinstone CJ said in Wasakah Singh v Bachan Singh (1931) 1 MC 125 at p 128: If the party on whom the burden of proof lies gives or calls evidence which, if it is believed, is sufficient to prove his case, then the judge is bound to call upon the other party, and has no power to hold that the first party has failed to prove his case merely because the judge does not believe his evidence. At this stage, the truth or falsity of the evidence is immaterial. For the purpose of testing whether there is a case to answer, all the evidence given must be presumed to be true. The second consequence is that the court ought to have drawn an adverse inference against the first respondent on the amount of the appellant’s contribution to the purchase price as well as the existence and the terms of the mutual understanding or agreement that she had with the first respondent. Where, as here, the first respondent being a party to the action provides no reasons as to why she did not care to give evidence the court will normally draw an adverse inference.”
A submission of NCTA means that the presiding judge is to accept the entirety of the Plaintiff’s case as being true and then is to exercise judicial apprehension of the evidence tendered and decide if it suffices in tipping the scales in favour of the Plaintiffs.
Recently in the Court of Appeal case of KSK Sawmilll Sdn Bhd v FW Solutions Sdn Bhd [2020] 2 MLJ 423, JCA Lee Swee Seng held that in cases of NCTA, the Trial Judge’s duty is not decide whose version of events is more probable but to determine if the Plaintiff’s version based on the evidence tendered is “inherently incredible or excessively fanciful”, and if the answer to that is no, then the Plaintiff’s version is to be accepted as a submission of NCTA does not rebut it:
“Whether the plaintiff’s version is more probable or the defendant’s version is more probable, is a matter that the trial judge would have to decide after the defendant’s witnesses have given evidence and subjected themselves to the plaintiff’s cross-examination through its counsel. [62] Here whilst the High Court had the benefit of the plaintiff’s explanation which is not inherently incredible nor excessively fanciful, the defendant by submitting a ‘no case to answer’ had not rebutted the plaintiff’s evidence at all.“
Conclusion
A submission of No Case to Answer, whilst can save time and spare you the possibility of your witness damaging your case on the stand, can also hurt you as the Plaintiff’s evidence is now unrebutted and can be accepted as true; a true double-edged sword.
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