My Small Claims Experience
Judge was partial to a Surveyor
and Mistook his Light for a Hat
When the Surveyor who did a Full Building 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 some kind of modest
But instead of fessing up, he trotted out a litany of
excuses for not seeing the defects.
These were mostly attempts to divert attention from his
failings. Here are a couple of examples (both of them untrue):
He claimed that I “did not obtain the prepurchase
Estimates and Reports which were a requirement of the [Survey] Report.”
He said that I “chose to ignore the advice of my
report including advice to renegotiate and chose to purchase [the house] above
These tactics were so irritating that I decided to take him to the Small Claims Court.
Me, a house buyer - the plaintiff
PW of WJ Chartered Surveyors, the defendant - the 'Surveyor’
Judge Fay Ellen Wright, the 'Judge’ - at Skipton County Court
One area of woodworm infestation was in the dining room floorboards and joists,
the underside of which could easily be viewed from the cellar. [see Photos]
One of the joists was immediately above the cellar door.
This door was low, about 4ft high, so an inspector would have to crouch down
and look up. No tradesmen working in the cellar have ever complained about the
low headroom. They accept it as part of the job.
There was nothing obstructing the doorway; it's an outside
door, so could be inspected in daylight.
I figured that a surveyor with his wits about him, one who
knew from experience where to look, would have grasped this easy opportunity to
inspect the floorboards.
Unfortunately, my Surveyor, PW, failed to
spot the woodworm in the joists.
In early exchanges, the nearest he came to dealing with my
complaint was this statement related by the Property Ombudsman:
“WJ states that while this area was inspected, it
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.”
There was also a damp area on a bedroom chimney breast – a
classic place for damp patches. An alert surveyor would have homed in on the
chimney breast, which was clear of any obstructions, such as cupboards, and easy to see in
The Property Ombudsman had this to say on the subject: "…we would not expect the inside of the cupboard to be inspected.
Consequently, we consider it unlikely that the inspecting surveyor would have located the damp at the time of
inspection and it follows that we do not propose to take any further action in respect of this issue."
For the first stage of my complaint, the Surveyor
He did not directly address either of the problems I’d
uncovered and concluded that he’d done nothing wrong.
The second step was a complaint to Ombudsman Services -
This organisation is funded by the property industry.
The Ombudsman did not directly address either of the
problems I’d complained about and concluded that the Surveyor had done nothing
The third stage was to sue in the Small Claims court.
I thought that for a relatively modest cost (£140) I might
get an interesting experience. And so it proved.
Although I had a strong case, I knew I only had a 50:50
chance of success.
This was because there was a chance I might be caught out by
legal loopholes I knew nothing about.
In addition, a knowledgeable friend advised that judges
generally side with their fellow professionals.
And so it proved.
Small Claims track
as it’s called, is fairly straightforward – you file a claim online, giving an outline of
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. 
In my case, however, the Surveyor asked for the case to be
struck out and, failing that, sought permission to employ a barrister, at a
cost, he claimed, of £750. He did not say that legal assistance would have
been provided by his professional indemnity insurance.
Professional witnesses and advocates are not encouraged by
Small Claims courts, so the Judge ordered a preliminary hearing to examine his
Since the court was unaware of the details of my case, I
voluntarily sent it my Witness Statement.
Having read it, the Judge must have thought there was a case
to answer, so refused the Surveyor’s requests and cancelled the preliminary
The Surveyor sent in his own Witness Statement at the last
possible moment before the deadline. This meant I was unable to respond by
adding to my own Statement.
Surveyor’s Witness Statement
Much of this document comprised attempts to divert the Judge’s
attention from the woodworm and damp issues by impressing her with words such
as ‘respected’, ‘professional’, ‘specialist’, ‘expert’, 'recognised, and ‘prominent’, all intended, no doubt, to emphasise the superior
quality of his own and associated trades.
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.”
There was a detailed CV:
“My name is PW. I am a Fellow (FRICS) of the
RICS. I qualified as a Chartered Surveyor in 1980 having trained with the
District Valuer and Valuation Officer (Inland Revenue) from 1974, then moving
to Local Government … and subsequently into Private Practice. I also hold a
Teachers Certificate in Mathematics and Education.”
He emphasised his experience:
“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.”
He concluded by saying he was based in York, about 45 miles
from the property he inspected.
The hearing began badly. At the appointed time, an usher
came over and said the Judge was just having a cuppa because she was running
It was a lengthy brew – an hour later we were escorted to
her office and sat before her at a table with space for 6 (at a squeeze).
It would have been tricky if members of the public had
wanted to attend.
The Judge did not trouble to introduce herself and I only
learned that her name was Fay Ellen Wright by calling the court afterwards.
It’s my experience that professionals who don’t introduce
themselves are less likely to respect their clients. And so it proved.
Judge Fay Wright spoke slowly and carefully, making it clear
that she was going to be meticulous in applying the rules, a stickler for the
She declared that she had read our Witness Statements, so
there was no need to repeat them.
As the plaintiff, I went first, giving a point-by-point refutation of the Surveyor’s evidence in his Witness Statement.
Wanting to show that his evidence was inaccurate, I began by questioning his claim that there
was no electricity at the house on the day of the survey.
I’d phoned the power supply company and been told there were no power cuts that day.
I’d then spoken to the vendor, who told me she had never ever turned the power off.
As the lack of electric power wasn’t a big issue (both defects were easily visible in daylight),
all I'd said about it in my own Witness Statement was that all services were working.
But in his Witness Statement, the Surveyor countered that I wasn't present at the survey,
so couldn't know whether the services were working.
I felt I had the right to reply but before I could relate my evidence, Judge Fay Wright
interrupted, declaring that it was not in my Witness Statement and so could not be used.
She also remarked that even if it had been presented earlier, she could not attach any weight to it unless the people
who’d uttered it came to court as witnesses to be cross-examined to check their credibility.
Next I tried to challenge the Surveyor’s claim that the
doorway to the cellar was so blocked by garden tools that he couldn’t do a full
I’d prepared a sketch of the doorway and the short passage
beyond, thinking it would help the Judge understand the layout of the cellar.
But she 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
After remarking that Rentokil had once tried to defraud me,
I said I 'd written to the Ombudsman to ask if I really needed to book such a
survey. The surprising answer was that a survey would not be necessary.
But before I'd finished the Judge intervened,
once again saying this was new evidence that couldn’t be used.
Looking across the table at the Surveyor, I could sense his
inner smirk widening.
It must have widened further when Judge Fay Wright allowed
him to get away with doing exactly the same thing – giving evidence that had
not previously been presented to the court.
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.”
I hadn't told him this, so where had he got it from? By chatting to a neighbour, perhaps?
He didn’t say.
Judge Fay Wright didn’t ask.
He went on to claim that I had only found another area of
woodworm in the garage when I'd “excavated” a beam above the door from inside
This was pure invention; it was not in his Witness Statement
and it was unsubstantiated.
The claim that the woodworm was found inside the
garage suited him nicely – he had not been given the key to the garage, so had
a ready-made excuse for not seeing any woodworm there.
But I had actually discovered the woodworm by tapping a cable clip into the
beam from the outside.
It sounded hollow. This was because the worms had eaten every last bit of solid oak. 
Outraged at the lie, I interrupted the Surveyor and was
(rightly) admonished by the Judge.
But Judge Fay Wright did not admonish the Surveyor for presenting new evidence.
She made no attempt to be even-handed - her stricture about not using evidence unless it had previously
been presented to the court was not applied to the Surveyor.
I was allowed to cross-examine the Surveyor.
I was still interested in the matter of the lack of
electricity at the house and approached the question obliquely.
I asked if he’d used the code given him by the estate agent
to disarm the burglar alarm.
The Surveyor couldn’t remember whether or not he’d used the
I pointed out that the burglar alarm would have sounded off
if it were not disarmed, even if there was no mains electric power.
I added that the vendor had told me she had never left the burglar alarm disarmed.
The Judge bristled. But the Surveyor had made the first
mention of the burglar alarm in his own Witness Statement, so I was entitled
bring it up. I realised that upsetting the Judge wouldn’t help my case but by
this time I knew it was a lost cause.
I moved on to the critical question of why the Surveyor had
not seen the woodworm in the joist directly above the cellar door.
He had consistently claimed that the doorway and the passage
beyond had been blocked with garden tools. I didn’t believe it because I’d
viewed the cellar only a few days earlier and had been able to move around
freely. The house was unoccupied so there were unlikely to have been any
changes since then.
He’d already admitted that he’d managed to get a few feet
into the cellar.
So I asked him why he was claiming that a blocked door had
prevented him from seeing the woodworm.
He surprised me: “I’ve not said the door was blocked.”
Judge Fay Wright jumped in sharply to support him,
demanding: “Where does he say the door was blocked?”
I said he used the term “access point”, which I took
to mean door.
The Judge said firmly that the “access point” did not mean the door.
The Surveyor added it meant that once you get into the area you can't get any further.
If I’d thought on my feet, I would have retorted, “A point is a point.
If you meant ‘area’, why not say ‘access area’?”
I wondered at the Judge’s unhesitating intervention. She seemed to have
researched the definition of “access point” beforehand.
It also felt like the pair of them were colluding to argue semantics.
I did my own research afterwards and concluded that Judge
Fay Wright was wrong – in British English usage, “access point” does mean door.
Despite feeling a bit shaken by this exchange, there was a
glimmer of light at the end of the tunnel, or should I say cellar.
The Surveyor had just confirmed that the doorway was free of obstructions.
He couldn't have had an excuse for not seeing the woodworm since the worst of it was in a joist immediately above the doorway.
I asked him, “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. 
But Judge Fay Wright sympathised and helped him out with
an excuse for not spotting the woodworm, one that the Surveyor himself had not thought of.
In her summing up the Judge declared that using a head
torch in an area of restricted height would have limited his ability to see the wormholes.
She did not explain how the head torch would have limited his inspection.
All Surveyor PW had ever said about a head torch was that he'd used one.
He did not say where he'd used it or that it interfered with his inspection.
What, I wondered, was going on? 
Are judges are entitled to come up with speculative notions that bolster the case of one of the parties?
And if it was not speculative, what had prompted the Judge’s trip into the light fantastic?
Continuing with her summing up, Judge Wright dealt with the damp issue.
During the hearing, the Surveyor hadn’t come up with any credible reasons for not reporting the
damp patch in the bedroom.
All he had mentioned in his Report were some twigs and a possible problem with soot on the outside of the nearby chimney. 
So, he'd reported blackness, but not dampness.
To his rescue rode the redoubtable Judge.
She declared that the Surveyor could not be expected to find
a damp patch in the bedroom because the chimney inspection was carried out from the ground (with binoculars, presumably).
Now it is perfectly reasonable to link a damp chimney breast with the nearby chimney stack.
But the Surveyor never said that he had viewed the latter from the ground.
He did say in his Report that he had brought a ladder so might well have inspected
this particular stack at close quarters (it is, in fact, the easiest part of the roof to reach by ladder).
But he did not say so or refer to it in any of the documents he presented to the court.
So, with her chimney chicanery, Judge Fay Wright had handed the Surveyor a clean sweep.
After a hearing lasting an hour and a quarter, 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.
This 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.
Although I thought Hell might freeze over before an appeal judge would criticise a fellow judge, I decided to give it a go.
But first, I needed 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 Subject Access Request (SAR).
40 days later I was not surprised to be told by HMCTS (HM Courts and Tribunals Service):
"You do NOT have a right of access to the information".
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".
This was either a cock-up or bureaucratic doublethink. I asked my MP to investigate.
John Grogan MP did not respond so I filed a complaint with the 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."
While this was going on I decided to have a go at obtaining the actual audio recording of the hearing.
After all, it was made in open court, so should be accessible to anyone who wants to listen to it.
Naturally, HMCTS rejected my SAR but this time the "non refundable" fee was returned to me.
I was given information on how to get an official transcription of the recording so, ever anxious to keep my civil servants busy,
I filled in the 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 2½ hour hearing would cost a little over £300 to transcribe, I was told. Thanks but no thanks.
I asked the Information Commissioner's Office (ICO) to review the rejection of my SAR for the recording.
9 weeks later the ICO said I was NOT entitled to the audio recording made at the Small Claims Court.
This is their opinion:
"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."
By this contrivance the Ministry of Justice can stop petitioners getting their hands on original material.
With no guarantee of a bias-free hearing and an outlay of £520+ I decided not to proceed with my appeal.
Comments and Advice
A This particular Small Claims court was not consumer friendly:
it was more like the Old Bailey than Judge Rinder.
There were times when I wished I'd had a solicitor or a MacKenzie's Friend to hand.
B Do not be tempted to compile a concise Witness Statement that
will relieve the judge of having to trawl through reams of stuff, in the hope that he or she will look favourably upon you.
C Include every single piece of documentation so that the judge can never accuse you of
introducing new evidence.
D If you want to sue a professional organisation for giving poor service, don’t bother.
Too much rests on the judge’s opinions, biases and prejudices.
E The Small Claims court is really only effective for cut-and-dried cases such as when
you’re owed money and have documentary proof of the debt.
F If you need a building survey, hire a builder or a similar tradesman with real
experience of houses.
G The above advice applies to England.
If you live in Scotland, it is obligatory for house sellers to employ a surveyor to produce a Home Report.
I have used six or seven surveyors in Scotland and have always found them to be straightforward,
competent and thorough.
in bold are mine)
 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.
 The woodworm in the garage was not part of my claim because WJ's
Terms and Conditions excluded outbuildings from the survey.
 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,
 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)
 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, just as in the original
Wonderland, when the King of Hearts declares, "That's very important", the White Rabbit corrects him saying, "Unimportant, your Majesty means".
The exchange in Fay Wright'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 Wright, mistook his light for a hat.
 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.
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.
To the best of my belief this blog is a factual account of what was said at the hearing. Naturally the interpretation of those facts is mine.
Statements in quotation marks are as close as possible to what was said at the hearing.
I am aware that losing litigants often accuse the judge of bias.
Judge Wright blocked parts of my case for breaking the rules, while allowing the other party to break the same rules.
She bolstered the Surveyor's case with her odd remarks and fantasy evidence.
If she wasn't biased she must have been having a bad day mentally.