What is the current standard of conduct in a defamation action?

There are exceptional circumstances in which the usual practice need not be followed. In Parry v. Aluminium Corp. Ltd., supra, Goddard L.J., referring to the usual practice, said (at p. 237): I do not say it is the right course in every kind of action, because in defamation cases, for instance, I believe there is authority for saying that, if it is submitted that there is no evidence of malice, the judge is bound to rule. Also in slander cases, the judge must rule if the submission is made that the words are not actionable without proof of special damage and no special damage is alleged.

The exceptions noted by Goddard L.J. do not stand alone. They are merely illustrative of those cases in which the submission of no case is based on a total lack of evidence to prove an essential ingredient of the plaintiff's claim. Thus, in Jehle v. Petaski, supra, Hamilton J. (as he then was) allowed a motion for nonsuit to be made, without putting the defendant's counsel to his election, where the motion was based on the fact that, although the plaintiffs had established their option to purchase property, their own testimony established that the option had not been exercised.