How a Judge was partial to a Surveyor

and

Mistook his Light for a Hat

Judicial bias in the Small Claims Court

Summary

When the Surveyor who did a Full Survey on the house I was thinking of buying failed to spot an abundance of woodworm and some damp, I complained, expecting him to apologise and offer modest restitution.

No such luck – all I got were excuses, blame-shifting and lies.

These tactics were so irritating that I decided to take him to the Small Claims Court.

On the day of the hearing, the schoolmarm judge, Mrs Fay Ellen Wright [1], was plainly on a different planet, such was her strange handling of the case:

* She favoured the Surveyor by allowing him to freely present ‘new’ evidence while preventing me from doing the same.

* She constantly interrupted me, making pedantic criticisms that were intended to unsettle and confuse me. Whilst allowing the Surveyor to drone on and on.

* She conjured up ‘facts’ that had never been mentioned in court.

The case

Woodworm

The dining room floor joists were infested with woodworm and could be seen from the doorway to the cellar, if you just looked up [ Photo ].

The Surveyor admitted that there was a view, albeit a restricted one: "We could not gain access to the under floor cellar except limited view from the door".

But access wasn't needed – just the nouse to look up and see the woodworm holes.

The Surveyor blamed a variety of obstacles for his failure to spot the woodworm:

“the area was full of stored items, in need of cleaning and the light did not work.”

None of this was true.

Damp

We found damp on a chimney breast – a classic place for damp patches. There was nothing to obstruct the view, such as a cupboard.

The Surveyor found one, though: "…I would not expect the inside of the cupboard to be inspected."

Witness statements

Fay Ellen Wright, the Judge, said there was no need to repeat our Witness Statements as she’d already read them.

The Surveyor’s Statement, filed seconds before the deadline, suggested that he, Mr Reasonable, was the subject of a client’s vexatious claim, but he was doing his level best to sort the matter out:

“As an active Christian I have...been anxious to look compassionately at the case.”

It was peppered with such words as ‘respected’, ‘professional’, ‘specialist’, ‘expert’, 'recognised, and ‘prominent’.

It was verbose and very full, but mainly of lies.

As the Plaintiff, I went first, hoping to give a point-by-point refutation of what the Surveyor had written.

But the Judge stopped me from presenting anything that was not already in my Witness Statement: I couldn’t challenge the Surveyor’s eleventh hour submissions. Mrs Judge was facilitating what was, in effect, a Trial by Ambush. In English law this is considered to be unfair.

Changing tack, I showed Wright a sketch I’d prepared of the house, thinking it would help to clarify the layout.

But she refused to look at it, saying it was new evidence.

Consequently, at this stage of the proceedings, I was permitted to say almost nothing.

But the Surveyor had plenty to say, much of it new to the court.

He claimed, for instance, that I’d only discovered the woodworm during extensive renovations.

It was not in his Witness Statement and it was an outright lie, but Judge Wright made no attempt to be even-handed and stop him saying it.

Questioning

When I was allowed to question the Surveyor, I asked him how the ‘blocked’ doorway to the underfloor cellar had stopped him seeing the woodworm.

He surprised me: “I haven’t said the door was blocked.”

(But he had: in his Survey Report, he’d named various obstacles that had restricted his view from the doorway; and in his Witness Statement, he’d claimed he was “unable to gain access through without considerable moving of objects.”)

But the real issue, it turned out, was not the lack of access, blockage or restricted view, but the definition of the word “door”:

He went on: “That’s not the door. It’s the access point.”

Mrs pedantic Judge jumped in sharply, as if to support him, saying:

“Technically, what he said was that the access point was blocked. You may ask him whether he meant the door.”

I said that the door is an access point.

Mrs Wright said firmly that “access point” does not mean “door”.

So ended a bizarre exchange that pivoted on the meaning of a common household fixture.

I next asked the Surveyor: “Why didn’t you just look up [at the joist]?”

He replied: “If you’re crouching to go in and you’re looking round…it’s very restrictive access…I really can’t help you any more.”

So that was it – he was concentrating on something else. He was like a driver claiming he was so busy looking at road signs he really could not be expected to avoid pedestrians.

For a professional man employed to do a job, it sounded very much like an admission of negligence [2].

Summing up

If Judge Wright noticed the Surveyor's admission of failure she did not refer to it in her summing up.

Instead, she helped him out with a clever excuse for not spotting the woodworm, one that Oliver Sacks would have found fascinating [3].

She declared that using a head torch in an area of restricted height would have limited his ability to see the wormholes.

She did not elaborate.

What, I wondered, was going on?

Why was a judge inventing evidence that bolstered the case of the defending party?

Well, the Surveyor had mentioned in his evidence that he'd used torches and had also worn a hard hat, which sometimes got in his way.

Had Mrs Judge got confused and mistaken his light for a hat? It seemed so.

Continuing with her summing up, Wright dealt with the damp issue.

The Surveyor hadn't come up with any credible reasons for not reporting the damp patch on the chimney breast.

All he'd mentioned in his Survey Report were some “twigs” on top of the nearby chimney stack [4].

This is his picture of the chimney pot: he'd confused metal rods for twigs. An easy mistake to make.

To his rescue rode the redoubtable Judge.

She declared that the Surveyor could not be expected to find a damp patch on the chimney breast because the external inspection had been carried out from the ground.

But the Surveyor never said how inspected the chimney (he did say he'd brought a ladder, though not where he'd used it).

So, with her chimney chicanery, Judge Wright handed the Surveyor a clean sweep.

She moved on to the verdict.

Verdict

After a hearing lasting an hour and three-quarters, Mrs Wright declared that there was no departure from the accepted standard of a competent surveyor and dismissed my suit.

She looked towards the Surveyor and asked if he wanted to apply for costs.

He could only have asked for his travel expenses and loss of earnings, the latter being limited to £90 for the day.

However, he must have remembered that he was an “active Christian”, because he said he was happy to be magnanimous and did not want to apply for costs.

Appeal?

You can appeal a verdict on the grounds that the judge has made a procedural error, which would surely include bias.

It costs about £120.

A copy of the recording of the trial would be useful – if only to check on the quality of the notes you made. But the MOJ prefers to skew the process in its favour by keeping recordings to itself. It will, however, sell you a transcript. This costs north of £300.

I didn’t bother appealing, because of the cost and because I assumed appeal judges would usually favour their colleagues.

Footnotes

[1] The following are comments from 2016, found on the web, made by litigants involved in parking disputes Wright presided over:

* “she’s a sour faced dragon.”

* “It is possible to win this on your own with a fair judge. Clearly judge Wright has other ideas.”

[2] This excuse by the Surveyor is uncannily similar to one given by a plumber to a court in Stirling when answering a charge of negligently installing a gas boiler, causing a house to explode.

Referring to a failed pipe joint the plumber resorted to the tried and tested restricted access routine, saying: "It's in a tight space, you've got a boiler in front of you..", making it difficult to visually inspect the work.

The tradesman was tried and tested and, in this instance, found guilty of negligence. (BBC News 22 Dec 2017).

[3] The Man Who Mistook His Wife for a Hat, Oliver Sacks, 1985.

[4] The metal cowl appears to be fixed to the pot by several spindly rods, which to the untutored eye might look like twigs. The text in the picture is in the Survey Report.

Disclaimer

This blog is a factual account of what was said at the hearing. Naturally, the interpretation and selection of those facts is mine.

Words inside quotation marks are derived from my contemporaneous notes and have been accurately reported.

I am aware that losing litigants sometimes accuse judges of bias.

I hope I have shown that this particular judge, Fay Ellen Wright, blocked parts of my case for breaking her rules, whilst allowing the other party to break the same rules.

In addition, she bolstered the other party's case with her off the wall remarks and imaginary evidence.

I have no doubt this strange woman was biased. If she wasn't, she must have been having an extremely bad brain day.

Footnote: Judge Fay Ellen Wright retired in 2021 at the early age of 62.

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