A recent decision of the Supreme Court has reinforced the need for a trial court to consider a plaintiff's evidence at its best before concluding that there is no case for a defendant to answer in evidence. This case will be of relevance to defendants and their insurers in professional negligence actions in determining whether to make an application for a 'non-suit' at the end of a plaintiff's evidence, to dismiss the claim for failure to make out a 'prima facie' case.

Murphy v Callaghan involved an elderly plaintiff who had transferred her property into the joint names of herself and her grandson, and then sold the property. The proceeds of sale were sent by way of cheque payable to both the plaintiff and her grandson, whose name was the same as the plaintiff's son. The plaintiff's son lodged the cheque in his own account. The plaintiff brought a professional negligence action against her solicitors and sued her son and grandson but settled with each of them.

The High Court dismissed the plaintiff's professional negligence case at the close of her evidence making three broad findings. It held that in a non-suit application there must be credible and reliable evidence raising a case for defendants to answer but that, in this case, the plaintiff's evidence was confused, unreliable and, in part, not credible. It found that expert evidence regarding the plaintiff's vulnerability fell away under cross-examination and held that there was no prima facie negligence in the making out of the cheque intended for her grandson.

On appeal the Supreme Court held that it was for the High Court to assess whether there was any evidence from which negligence could be inferred or any evidence, regardless of its relative cogency or strength, upon which a court could conclude that a defendant was liable. In allowing the appeal it referred to numerous examples of the plaintiff's case not having been taken at its highest by the High Court.

With regard to the 'falling away' of the expert's evidence, this was based on assertions by counsel for the defendant solicitors about contradicting evidence that would be given but that was not yet called. It also found that, while the plaintiff's credibility could be a factor, it could not effectively be a reason to dismiss the appeal where a court is required to take the appellant's case at its highest. It concluded that the High Court erred in failing to have due regard to the evidence adduced and remitted the matter back to the High Court.

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