and Mistook his Light for a Hat
Judicial bias in the Small Claims Court
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.
But instead of fessing up, he used distraction and deflection tactics, along with lies and feeble excuses for not seeing the defects.
He claimed, for example, that I “chose to ignore the advice of my report including advice to renegotiate and chose to purchase [the house] above my valuation…”. This had nothing to do with his inspection; it was also a lie: I did renegotiate the price.
He also conjured up objects that blocked his view of potential defects.
And his vision was further impaired by an invented electricity blackout.
These tactics were so irritating that I decided to take him to the Small Claims Court.
At the hearing a schoolmarm judge, Fay Ellen Wright, stopped me from presenting several items of evidence because they were not part of the Witness Statement I had earlier submitted to the Court.
Yet she did not stop the other party, the Surveyor, from doing exactly that: giving evidence that was not in his Witness Statement.
Furthermore, she based her judgement on two 'facts' that had never been mentioned in court.
One was her invented assertion that the Surveyor had inspected a chimney stack from the ground.
The other was a bizarre fantasy that the Surveyor's head torch had prevented him from seeing the woodworm.
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 ability to look up and see the woodworm holes.
The Surveyor tried to blame a variety of obstructions for his failure:
“the area was full of stored items, in need of cleaning and the light did not work. It therefore may not have been possible to identify any sign of woodworm.”
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."
The Small Claims track, as it’s called, is fairly straightforward – you file a claim online, giving an outline of your case.
After 6 to 8 weeks, when you’ve been allocated to a particular court, communications take place by post.
You are given a date for the hearing and a deadline to submit your detailed evidence in the form of a Witness Statement [1].
In my case, however, the Surveyor asked first for the case to be struck out. Then he sought permission to employ a barrister at a cost, he claimed, of £750.
A preliminary hearing was ordered to examine his requests.
I voluntarily sent my Witness Statement to the court.
Having read it, a (male) Judge thought there was a case to answer, so refused the Surveyor’s requests and cancelled the preliminary hearing.
The Surveyor sent in his Witness Statement at the last possible moment before the deadline. This meant I was unable to refute his claims by amending my own Statement.
He began by trying to persuade the Judge that he, Mr Reasonable, was the subject of a vexatious claim from a client who was trying it on: “As an active Christian I have...been anxious to look compassionately at the case.”
The Statement was peppered with words such as: ‘respected’, ‘professional’, ‘specialist’, ‘expert’, 'recognised, and ‘prominent’.
There was a detailed CV: “My name is PW. I am a Fellow (FRICS) of the RICS. I have experience over 43 years in the inspection, surveying and valuation of properties similar to the subject of this Report. Over that period of time I have been employed by Central and Local Government and as a Senior Chartered Surveyor by prominent Regional Firms of Surveyors and Valuers. ”
The players at this piece of theatre at Skipton County Court were:
Me, a house buyer - the plaintiff
PW of WJ Chartered Surveyors of York, the defendant - the Surveyor’
Mrs Fay Ellen Wright - the Judge
The hearing began badly. At the appointed hour, an usher said the Judge was just having a cuppa because she was running late.
It was a lengthy brew – an hour later we were escorted to her office and sat before her at a small table.
The Judge did not trouble to give her name – it is my experience that professionals who think they do not need to introduce themselves are less likely to respect their clients.
And so it proved.
She spoke slowly and carefully, making it clear that she intended to be meticulous in applying the rules.
She declared that as she had read our Witness Statements, there was no need to repeat them.
As the plaintiff, I went first, giving a point-by-point refutation of what the Surveyor had put in his last minute Witness Statement.
He'd claimed there was no electricity at the house on the day of the survey.
It was a lie and I was about to give my reasons when Judge Wright interrupted, declaring that as they were not in my Witness Statement they could not be used.
Next, I tried to challenge the Surveyor’s claim that the access to the cellar was obstructed.
I’d prepared a sketch of the area, thinking it would help the Judge understand the layout.
But Wright refused to look at it, saying it was new evidence.
One of the Surveyor’s irrelevant criticisms was that I’d rejected his advice to get a survey done by a specialist woodworm contractor such as Rentokil.
I had written evidence that such a survey was not necessary.
But once again Wright declared that it was new evidence that could not be used.
Looking across the table at the Surveyor, I could sense his inner smirk widening.
When it came to the defendant’s turn to speak, the Surveyor claimed I had discovered the damp and woodworm only when I undertook “invasive investigations” and “renovations”, adding in a patronising tone, “as is often the case”.
This wasn't true and hadn't come from me. So where had he got it from?
He didn’t say. The Judge didn’t ask.
What's more, it wasn't in his Witness Statement, so should have been discounted.
But Judge Fay Wright made no attempt to be even-handed – her stricture on using evidence not previously seen by the court was not applied to the defending party.
I was allowed to cross-examine the Surveyor.
I asked him why he was claiming that a blocked doorway had prevented him from seeing the woodworm.
He surprised me: “I’ve not said the door was blocked.”
Judge Fay Wright jumped in sharply, as if to support him, demanding: “Where does he say the door was blocked?”
I said he used the term “access point”, which means door.
Wright said firmly that “access point” does not mean door.
The Surveyor added that he meant that once you get into the area beyond the door you can't get any further, because it was blocked.
I wondered at the Judge’s confident intervention: she seemed to have researched the definition of “access point” beforehand.
I did my own research afterwards and found that the esteemed Judge was wrong: in British English usage, “access point” undoubtedly does mean door [2].
I asked the Surveyor: “Why didn’t you just look up [at the joist]?”
His answer told me what I’d already guessed – that he’d missed the woodworm because he was busy trying to get into the cellar, concentrating on other things, missing the obvious:
“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.”
For a professional man employed to do a job, it sounded rather like an admission of negligence [3].
If the Judge noticed the Surveyor's admission she said nothing about it in her summing up.
Instead, she helped him out with an odd excuse for not spotting the woodworm, one that Oliver Sacks might have found interesting.
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?
The Surveyor had mentioned that he'd worn a hard hat, which sometimes got in his way.
Had Wright mistaken his light for a hat? [4]
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 and a possible problem with soot on its outside [5]. This is his picture of the chimney pot.
He'd confused a metal cowl for twigs and correctly reported blackness (but not dampness).
To his rescue rode our redoubtable Judge.
She declared that the Surveyor could not be expected to find a damp patch because the chimney inspection had been carried out from the ground.
But the Surveyor never said he'd viewed the chimney from the ground. He did say he'd brought a ladder, though didn’t say where he'd used it.
So, with her chimney chicanery, Judge Fay Wright had handed the Surveyor a clean sweep. She moved to the verdict.
After a hearing lasting an hour and three-quarters, she declared that there was no departure from the accepted standard of a competent surveyor and dismissed my suit.
She then 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 he was an 'active Christian', for he said he was happy to be magnanimous and did not want to apply for costs.
You can appeal Small Claims verdicts though you only get 21 days to do so.
It is not a true appeal because you can only challenge a verdict on the grounds that the judge has made a procedural error.
It is more like the complaints process of a private company, except that the MOJ charges rather a large fee - £120 plus £100 for a late application, known as an Extension of Time.
But first, I thought I would need hard evidence.
The notes that I saw Judge Wright writing would almost certainly be used by the appeal judge to find out what had gone on at the hearing. I felt that in the interests of fairness I was entitled to have access to those notes. So I applied to see them, using a SAR (Subject Access Request). It was rejected.
This footnote [6] details the tricks the Government uses to defeat such requests.
Next I thought I’d have a go at obtaining the audio recording of the hearing. After all, it was made in open court, so should be accessible to anyone who wanted to listen to it.
This SAR was also rejected [7].
With no guarantee of a bias-free hearing and an outlay of £520+, I decided not to proceed with my appeal.
Footnotes
[1] This is a statement of your claim, cross-referenced to emails, photographs, receipts and any other evidence. It has to be completed to a fairly precise format laid down by the court. All your evidence must be included because you can’t use anything at the hearing unless it’s in your Witness Statement. This rule can be ignored if you're the judge's favourite.
[2] Although the term ‘access point’ is not a recognised compound noun and is rarely found in British English dictionaries, it is sometimes used by the UK property industry, when it refers to a doorway, ie a place where you would find a door or perhaps a gate, manhole cover or hatch. These examples come via Google:
- in estate agent’s brochures: “There is coving to ceiling and a doorway leading to the side hall which provides useful access point from the front elevation.”
- on architect’s drawings: Broxtowe Borough Planning Dept keeps a plan with the notation: ‘access point/doorway’ accompanied by an arrow indicating a door.
- by builders: “Back to project manager, Paul, he’s happy it’s plaster and instructs the builder to cut an access point in the corridor where he wants the doorway.”
- in survey reports: I asked the RICS about the term. Its librarian, Annette Howard, wrote, “I confirm that the term is used in our Homebuyer Report both with and without a valuation but there is no RICS definition of the term. I have not been able to find a definition of the term in any general legal dictionaries which we have access to.”
Despite this lack of definition, the RICS, in its Guidance to surveyors, makes it clear that ‘access point’ refers to a hatch (or anything similar, such as a door): “Subfloor areas are inspected only to the extent visible from a readily accessible and unfixed hatch by way of an inverted ‘head and Shoulder’ inspection at the access point.”
The OED is one of the few dictionaries to mention the term, but as an example only; one of its definitions of ‘Access’ is given as: “With the sense ‘that provides a means of entry; designating an opening or entrance’, as access hatch, access point, etc.”
[3] 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)
[4] The Surveyor had mentioned that he wore a hard hat to protect his head.
Could it be that in the Wonderland that was Judge Fay Wright's court, "hard hat" somehow metamorphosed into "head torch"?
If so, perhaps the Court could usefully employ an official to issue corrections to confused judges: in Alice in Wonderland, when the King of Hearts declares, "That's very important", the White Rabbit corrects him saying, "Unimportant, your Majesty means".
A similar exchange in Skipton County Court 's Wonderland court might have gone as follows:
Judge Wright: "The Surveyor's ability to see the woodworm would have been limited by his use of a head torch."
White Rabbit: "Hard hat, your Ladyship means."
Judge Wright: "Seize that rabbit. Off with his head."
And this, gentle reader, is how that eccentric Judge, Fay Ellen Wright, Mistook his Light for a Hat.
[5] The Surveyor also reported twigs from a crow's nest in the chimney pot. But the photographs he presented to the court actually show a metal cowl atop the pot. It appears to be fixed to the pot by several spindly rods, which to the untutored eye might look like twigs. This picture shows the chimney pot as it was on the day of the survey; I have added the relevant text from PW's Survey Report.
[6] HMCTS (HM Courts and Tribunals Service), a Computer-Says-No kind of organisation, dealt with the SAR.
I was not surprised when, 40 days later, HMCTS told me: "You do NOT have a right of access to the information" (my emphasis). So the request was rejected.
Or was it?
Although they didn't return my £10 fee, I assumed the cheque had been binned. But 3 months later it was presented for payment. I asked for a refund but was ignored.
I made a formal Complaint and got a somewhat disconcerting response: "This request was NOT rejected".
It was either a cock-up or a piece of bureaucratic doublethink.
I asked my MP to investigate. John Grogan MP did not respond so I filed a complaint with the PHSO (Parliamentary Ombudsman). I got a prompt reply stating that HMCTS were claiming that the SAR fee is non-refundable: "We contacted HMCTS to establish the current status of your complaint following their correspondence with you. They explained that a standard £10 fee is charged for a Subject Access Request (SAR) which is to cover the investigation and response from the assigned Knowledge Information Liaison Officer (KILO). HMCTS explained that you received a response from the KILO and the £10 fee is non refundable."
This explained nothing so I appealed the PHSO's adjudication. Months later, it told me that Judge Wright had looked at the notes I'd asked to see and concluded, remarkably, that "there was no personal data in them".
So had I been wrong to assume that she was taking notes about what we said in court?
What was Judge Wright doing with her pen and notebook? Her shopping list perhaps?
The PHSO's convenient conclusion allowed the authorities to say that my SAR was NOT rejected because there was no data to be rejected. "If it were rejected", declared the PHSO, "that would mean that the request was not processed at all".
It all made perfect sense.
[7] HMCTS rejected the audio SAR but this time the fee was returned to me.
I was told how to get an official transcription of the recording so, ever anxious to keep my civil servants busy, I filled in a form.
The court had to send the recording to Ubiqus, a firm of transcribers in London, who provided me with a quote. This came so quickly - 5 days - that the recording must have been sent electronically and so is likely to be digital.
The recording would cost a little over £300 to transcribe, I was told. Thanks but no thanks.
I asked the ICO (Information Commissioner's Office) to review the rejection of my SAR for the recording.
9 weeks later the ICO said I was NOT entitled to the Small Claims audio recording. This was their opinion (my emphasis in bold):
"Unfortunately, we would advise that audio recordings of Court Proceedings are considered exempt from disclosure under Section 7 of the DPA. This is because, section 34 of the DPA states that;
“Personal data are exempt from—
(a)the subject information provisions,
(b) the fourth data protection principle and section 14(1) to (3), and
(c) the non-disclosure provisions,
if the data consist of information which the data controller is obliged by or under any enactment [other than an enactment contained in the Freedom of Information Act 2000] to make available to the public, whether by publishing it, by making it available for inspection, or otherwise and whether gratuitously or on payment of a fee.”
This means that if a data controller is obliged to make personal data publicly available due to any other legislation, then the personal data is exempt from the subject information provisions. This is the case for transcripts which can be requested under the Court Procedure Rules (CPR).
As the data contained within transcripts and audio recordings are considered to be the same, section 34 of the DPA would apply to both audio recordings as well as transcripts.
This means that you would not be entitled to the audio recordings requested in your SAR.
It can be said that while the data contained within the audio and the transcripts are the same, audio can contain additional data to that in the transcript.
To request the audio over the transcripts, an individual would need to demonstrate that the audio contains more personal information than that which is contained within the transcripts.
In order to do this, an individual would need to explicitly state their rational for this, the consequences that the tone had on their case and why the tonality is particularly significant to their request."
The judgement appeared to contradict Judge Wright's assertion that there was no personal data involved.
By such shenanigans the Ministry of Justice contrived to stop a petitioner getting his hands on original material.
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, I am absolutely sure, 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 the 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 the woman was biased. If she wasn't, she must have been having a very bad brain day. Or else suffering from early onset dementia.
Footnote: Judge Fay Ellen Wright took early retirement in 2021 at the age of 62.
