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My Small Claims Experience

How a Judge was partial to a Surveyor

 

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 restitution.

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 my valuation….”

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

The players

Me, a house buyer, the plaintiff
Peter Walker of Walker Jones Chartered Surveyors – ‘the Surveyor’, the defendant
Judge Fay Ellen Wright of Skipton County Court– ‘the Judge’

Woodworm and Damp

One area of woodworm infestation was in the dining room floorboards and joists, the underside of which could be viewed from the cellar.

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 was 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, Peter Walker, 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:
“Walker Jones 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 daylight.
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."

Complaint stages

For the first stage of my complaint, the Surveyor investigated himself.
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 - Property.
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 wrong.

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.

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 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 requests.
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 hearing.

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.

The 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 Peter Alan Walker. 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

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 late.
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 procedures.
She declared that she had read our Witness Statements, so there was no need to repeat them.

My evidence

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 inspection.

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 Rentokil.
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.

The Surveyor’s evidence

When it came to the defendant’s turn to speak, the Surveyor claimed that 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.” 

Where had he got this information?  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 the building.

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 [2]. 

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.
Nor did she suggest that whoever had told him about my "invasive renovations" should have come to court to be cross-examined to check their credibility.

Cross-examining 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 code.

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.

Points of access

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. It was as though she had 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 [3]. 

Negligence

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.

Summing up

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 Walker 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 [4]?

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 prompted Judge Fay Wright’s trip into the light fantastic?

Continuing with her summing up, the Judge 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 was a possible problem with soot on the outside of the nearby chimney [5].

So, he'd reported blackness, but not dampness.

To his rescue rode the redoubtable Judge Fay Ellen Wright.
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.

Verdict

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.

Appeal

I did consider appealing Judge Fay Ellen Wright’s skewed verdict (it costs just £150) but thought Hell might freeze over before a judge would criticise a fellow judge.

Comments

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.

 

Footnotes (emphases in bold are mine)

[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.

[2] The woodworm in the garage was not part of my claim because Walker Jones's Terms and Conditions excluded outbuildings from the survey.

[3] 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.”

[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, 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 go 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."

[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 Peter Walker's Survey Report.

 

Disclaimer

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.

Not all statements in quotation marks are word-for-word but they do closely reflect what was said at the hearing.

I am aware that losing litigants often accuse the judge of bias.
Judge Wright may or may not have been biased but she was certainly not even-handed in her dealings with the parties.
She blocked parts of my case for breaking the rules, but allowed the Surveyor to break the same rules.
In addition, to justify her decision, she conjured up unsubstantiated evidence that bolstered the Surveyor's case instead of illuminating the judgement.


 

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