In England a judge will almost always refuse to hear the submission unless the defendant elects to call no evidence. Court of Appeal cases like Benham v Kythira Investments Ltd = a severe procedural trap – the Irrevocable Election. That is because the defendant must state that they will stand or fall by their submission.
So, they waive their right to call their own witnesses or cross-examine further if the submission fails. In rare circumstances, a judge may allow a submission without forcing an election, but the standard practice is to demand it.
If the defendant makes the election and proceeds, the judge applies a very high legal threshold to evaluate the request.
The judge must evaluate the claimants evidence at its absolute highest.The submission will fail if a reasonable tribunal could find for the claimant on the essential elements of the dispute.It will only succeed if there is a complete absence of evidence supporting an essential element of the claim, or if the evidence provided by the claimant is inherently incredible or completely undermined during cross-examination.
Contentious Probate and Trust claims are inherently fact-specific, relying deeply on witness credibility, contemporaneous medical records, and the nuances of human relationships. It is exceptionally rare for a claimants case to have an absolute zero evidentiary value by the halfway mark.
If a defendant forces the issue, loses the submission, and has elected to call no evidence, the judge will rule on the claim using only the claimants uncontested narrative, almost guaranteeing that the defendant will lose the entire trial and face significant adverse costs orders.
The existence of this litigation risk is another reason why it is sensible to enter into Mediation at an early stage even in a case that is perceived by the opposing party to be weak – unless of course there is at least an 80% chance of an application for summary judgment or strike-out suceeding. The unknown factor from the outset which makes this almost impossible to calculate with any meaningful accuracy is the judge who will hear the application.
Real advocacy is not like what you see on TV. Judges are intellectually fallible, some in the lower courts are deeply flawed and like everybody else they are human. Because Contentious Probate relies so heavily on nuances of human relationships, capacity, and undue influence, many judges prefer a full trial over summary disposal unless the claim is completely fanciful. It is exceptionally difficult to prove that a claimants case has an absolute zero value early on. Witness statements and contemporaneous medical records often reveal unexpected shades of grey under cross-examination, making pre-trial assessments highly volatile. In probate disputes, costs frequently escalate to the point of swallowing the estates entire value. Mediation provides an escape mechanism to cap these costs before they become destructive.
